Ten Tips for an Effective Negotiation
Here are some negotiating tips for lawyers and their clients for how to get the most from a negotiation:
Don't treat a negotiation just as a law case
One of the biggest criticisms that I can level at lawyers during mediation and in overall negotiation is they often focus just on the law and they neglect other dynamics of the negotiation. Whilst the law is important a point not to neglect is that you are attempting to reach a deal with another party not convince a 3rd party(namely a judge) of the merits of your case.
This may sound obvious but on a number of occasions I have conducted mediations as either a mediator or a solicitor and come across parties who have not really understood what is involved in a mediation. Prior to the mediation ask yourself at what point in the case do I want to mediate?, how bid should my mediation team be, what type of mediator do I want to deal with my case.
Don't be over aggressive
The nature of the English legal system encourages one to be adverserial. Whilst one should be firm in one's position, do not be so aggressive that you upset the other side so much that you neglect the chances of a deal being reached. One of the biggest criticisms that I have of lawyers in negotiation is that they are far too macho and just manage to wind the other side up.
Identify your legal and other costs
If you have worked out the level of legal and other costs incurred, this will put you in a stronger position. An effective mediator will ask you about the level of legal costs incurred on the case though will hopefully do so in such a way not to talk someone into settlement but rather to assist a party in valuing a case. Such costs can be intangible such as loss of business opportunities that inevitbaly accommpany the process of conducting litigation.
Assess your strengths and weaknesses in the case. Your position in the negotiation will be advanced ifyou have an understanding of your "Best Alternative to a Negotiated Settlement."("BATNA") This represents what you will do if an agreement is not reached in a negotiation. Consider consequences of a failed mediation or negotiation No matter how good a mediator is how effective negotiator you are, there is always the risk of a failed mediation. If you have considered you bottom line with thought, you can walk away without regrets.
If you can, make first offers
There has been a fair amount of discussio on this but in my experience a party who makes a strong but realistic 1st offer is in a better position than one who does not. An aggressive first offer can work in your favour as of the best predictors of negotiator satisfaction(including the other side) with an outcome is the number and size of the concessions extracted from an opponent. By making a strong first offer and giving your opponent the opportunity to “extract” concessions from you, you’ll not only get a better outcome, but you’ll also increase the other side’s satisfaction.
Analyse your case in detail
Case analysis or what can be termed risk analysis is very important in a traditional negotiation as it provides a frameowork within which one can negotiate a case. Without good case analysis, the negotiator does not have a compass and he or she will be ineffective. This is where legal skills can come to the fore and having a lawyer present at the mediation is very useful.
Remember movement breeds movement
The way that you interact with the other side will impact how they interact with you. Remember the greatest impediment to settlement is the view that the case will not settle. As a consequence try to think of well-thought out proposals which can reach agreement.
Bring the right people to the negotiation
One problem that can happen at mediatons or negotiations is that parties can bring the wrong people such as those who do not have confidence in the process, bringing awkward people, someone with inadequate knowledge of the dispute. This can harm chances of getting the deal done.
Keep reviewing the strength of your case
Whilst you are at the mediation or negotiation, keep assessing the strength of your case and seeing how the intercation is going.
For professional help with your next big negotiation call Justin Patten, negotiator and professional mediator.
Download a free copy of the Human Law Mediation Negotiating for Excellent Results White Paper - download now.