The following guidelines can help you reach an out-of-court settlement and come up with creative and mutually beneficial solutions to your disputes, with or without lawyers at the table. Make sure the process is perceived as fair. Start by trying to negotiate a compromise with the other party. Before picking up pen and paper, try to negotiate directly with the person, preferably in person.
You can try to reach an agreement at any point in the legal process before you have a final court order. Settlement can occur in court, for example, at a pre-trial hearing or other meeting scheduled by the judge, or outside the courtroom before a hearing. The settlement can also occur outside of court. For example, you can schedule a meeting with the other party somewhere else or talk on the phone.
Successful negotiation requires commitment from both parties. Both sides must gain something and both sides must lose something. You must be prepared to give up something that you think you are entitled to. You can't expect to defeat your opponent or win a negotiation, either because of the power of your negotiation skills or the convincing force of your logic.
This is not to say that good negotiating skills are irrelevant. In most cases, there are a variety of possible outcomes. An expert negotiator can often strike a deal near the top of the range. Ethical prohibitions against deliberate misrepresentation during negotiation are clear.
Professional Conduct Rule 4.1 prohibits you from knowingly making a false statement of fact or law at any time during your representation of a client. The rule does not provide for any exceptions by allowing false statements during trading. It covers not only false statements about the facts of the case, but also false and misleading statements made to facilitate reaching a favorable settlement. However, this is probably the most frequently violated ethical rule.
The prohibition against active misrepresentation does not seem to require you to correct your opponent's misunderstanding of facts or the law, as long as you do nothing to encourage it. The Professional Ethics Committee has stated that, while a lawyer has a duty not to deceive the opponent with errors or silence, he has no obligation to disclose the weaknesses of the client's case or to correct his opponent's misconception of the law, even if it is an incorrect or unfair result is achieved. Rule 4.1 of the Model Rules of Professional Conduct continues to make it acceptable to exploit an opponent's misunderstanding. The text proposed in the Final Draft of the 1981 Model Rules, which would have prohibited non-disclosure of facts when such omission would amount to material misrepresentation, was not promulgated.
However, in extreme cases, even passive deception can be unethical. If you hide facts that you know could cause your opponent to break negotiations completely and allow a deal to be based on material false assumptions, you may have acted unethically. For example, it is unethical for a plaintiff's lawyer to continue negotiations in a civil case if the client has died. Ultimately, it should be your client who sets the trading limit, deciding the final outcome of your trading range.
You have a responsibility to advise your client and help them assess where a realistic trading limit should be set. This is not always an easy task if the customer is not willing to accept the possibility of losing. If the client demands an unreasonable settlement or refuses to authorize settlement negotiations, you must withdraw from the case or comply with your client's wishes. Many lawyers forget that it is the client's demand and that they are playing with the client's money.
Blanketing presents a lot of problems together. Can be used for a number of purposes. Many weak issues can be grouped together in the hope of achieving a concession on one or two of them. A single weak problem can be buried among the strongest.
You may be able to find out how strong you think your opponent is on individual issues based on the order in which they respond. Blanketing can also be used to gain control of the agenda. If you raise just one question, your opponent can take control of the next one, but if you present a group of issues simultaneously, you can maintain control throughout the discussion. Matchmaking introduces two issues together so you can make concessions on one and get concessions on the other.
This tactic is often used to present two of your weakest problems. If you discuss them separately, you may have to make concessions on both, but if they are taken together, you can demand a concession from your opponent, arguing that it is unfair that you expect you to make all the concessions. Retroactive matchmaking is to reopen a resolved issue and pair it with a current issue to counter an unreasonable demand from your opponent. You can then demand that the problems be addressed together or that the current problem be eliminated.
Nierenberg uses the example of a labor negotiation in which the union demands a shorter workweek, and the employer responds that it can only be considered if the union is willing to give up some of the holidays already agreed. Slicing salami involves seeking concessions in small increments, such as obtaining possession of a salami, one thin slice at a time. If you openly try to take something big away from your opponent, particularly on an important issue, he or she is likely to craft a vigorous defense. However, if an important topic can be divided into smaller issues where there is little at stake, cooperation and commitment may be easier to obtain.
Limited authority is a tactic in which the scope of the negotiator's agency is temporarily limited by the client, or by handing over part of the negotiation to an associate with limited authority. Sometimes, it may be easier to agree on a couple of sub-topics first and re-negotiate more difficult issues another day when a person with full authority is present. This tactic has a potential drawback: the other party may refuse to negotiate if the agent's authority is too limited. You can set artificial limitations, especially time limits.
Setting time limits can create an atmosphere conducive to compromise, as long as both parties take the time limit seriously. This rarely happens because the boundaries are usually arbitrary and do not bind anyone. Some negotiators try to schedule trading sessions at times when natural time limits apply: Friday afternoons, a few days before Christmas or Thanksgiving, etc. Boulwareism, named after a labor negotiator named Lemuel R.
Boulware, submit a take it or leave it proposal. You make a fair offer in or near your income statement and stick to it. Hardly anyone uses it, so they probably don't take you seriously. Your opponent will misinterpret your offer as a first offer and reject it.
This tactic invites the opponent to bluff and interrupt negotiations if the offer is unacceptable; therefore, it should be reserved for situations where you are prepared to go to trial if the offer is rejected. Go to mediation by seeking the help of a neutral person who can encourage an agreement and suggest compromises. The judge is often willing to act in this capacity, or may hire a mediation service. Use subcommittees: Assign one person from each negotiation team to try to resolve difficulties outside the negotiating table.
Replacement is the assignment of new negotiators to take charge when the originals seem to have reached a stalemate, dividing the difference. This is probably the oldest negotiation tactic, used to reach a final agreement when the parties are close to an agreement. Logically, this tactic makes little sense, because it has no relation to any aspect of the case. It is not wise to use it unless the disputed amounts are small.
If you are negotiating in good faith and want to facilitate the solution through cooperation, it would seem logical to respond to an offer with a counteroffer. This exchange of offers, accompanied by discussions about the underlying reasons, helps to isolate differences of opinion and helps to structure the negotiation. In fact, the wisdom of this approach is confirmed by several experimental studies. Maximum cooperation is achieved when the parties alternate concessions.
You can imagine that it is a good tactic to try to get your opponent to make several concessions in a row, and you feel that you are gaining an advantage by doing so. The problem is that if you don't respond to a legitimate commitment with a compromise offer of your own, the party taking the first step may feel betrayed. The result may well be a break in negotiation. Some lawyers who employ a more competitive negotiation technique try to delay making counteroffers for as long as possible.
They expect their opponents to continue to submit lower and lower bids (they make all the concessions) while doing nothing, they only submit a counteroffer when they think the opponent is close to their trading limit. However, this tactic is likely to work only if the opponent is desperate to reach an agreement. Otherwise, you are unlikely to make a second offer or continue negotiations, unless you submit a counteroffer. So far, the discussion has meant that both parties are genuinely interested in trying to reach a mutually beneficial agreement and understand that cooperation is the best way to achieve it.
However, you can never be sure that your opponent is negotiating in good faith, unless he or she proves it through honest negotiation. How should you respond to harsh tactics (threats, ultimatums, unreasonable offers, stalemate, etc.) that threaten to stall negotiations and make an agreement impossible? In most cases, you should probably accept the inevitable and end the discussion. Negotiation will not be successful unless both parties want it. B) Not making an offer (not negotiating in good faith) Your opponent may refuse to make an offer or counteroffer.
You may try to force you to change your own offer (make concessions) without making any counterproposals. You may be asked to change your first bid because it's too high or low, or your opponent may make some bids and then stop making concessions. Effective negotiation requires both parties to cooperate. If your opponent stops, there's no point in continuing.
You should never bid against yourself. TACTICS Roger Fisher and William Ury, Getting to Yes (2nd ed. Edwards, Plea Settlement and Negotiation (198). Avoiding a trial could save you time and money and help you get compensated faster.
Reaching an out-of-court settlement through negotiation or mediation allows both parties to reach a mutual agreement that gives them more control over the outcome. . .
