How long has it been since you practiced your negotiation skills? Or reviewed tactics or strategy you once knew but have slipped from using?

The purpose of these short “Four Lessons on Negotiation” is to give you, in less than 500 words each, four separate strategies, each of which can pay dividends to you in a negotiation. These “lessons” are short. Our theory is that you are a busy lawyer who when given an idea knows how to apply it to cases actually in your office right now (so we can shorten the lesson to a mere 500 words or so).

Read each lesson, then stop and, for at least five uninterrupted minutes, think how the strategy the lesson outlines can be used by you in each of your present cases in litigation.

Lesson # 1. Provide objective criteria for your demand, and insist on objective criteria from the other side.

(A) Make it specific that you are providing objective criteria, and (B) specifically state that you want specific objective measurement criteria from the other side. The immediate advantage to you is that the other side starts to question their own stated position if they do not have immediately at hand some objective measurement criteria for their position. The long term advantage to you during the remainder of the negotiating session is that the setting then becomes one in which the adversary usually stops blustering and emotional reactions and instead uses constructive action attempts to come to a compromise.

Therefore, when the adversary negotiators say their client wants item Y or amount X, respond by insisting on objective criteria from them that supports their client’s subjective desire for Y or X as being a rational item to request your client to provide to them.

On your side: instead of simply saying “I want this” say: “I want this because…[objective criteria, e.g., its market value is based on this expert appraisal I’m handing you to verify; or based on these specific jury verdicts in this list, or based on these bills and expense invoices]”.

By your decision to provide objective criteria at the outset of a statement of what you want, two things are accomplished:

  1. Objective measurements set a tone of reasoned request, that your adversary will interpret as strength on your side.
  2. In fact, there is both emotional and rational power in the objective measurements you present to show your request as objectively rational . Use it.

Lesson # 2. Focus on all the interests of the parties and of the negotiators, not solely on the stated positions of the parties.

There is power in exploring additional interests (all the reasons why you and your party – and the other negotiator and his/her client – want something) versus the stated positions of desire. Arguing over stated positions often leads to frustrated deadlock, or to mechanical attempts by each party to move further away from the natural center so that later it will be profitable for them to agree to “split the difference”.

In contrast if you can find the all the interests underlying both a party’s position and also their negotiators’ desire to present it in a particular manner, you may often find opportunities. For example if you understand the true interest of your adversary negotiator is to “look good” in his/her client’s eyes, you can often find ways to help them do that, e.g., by your making statements in the presence of their client about the excellent negotiating skills of their negotiator in spite of the weaknesses of the facts on their side. Another example, a personal injury claimant’s true interest may be to feel secure that they have enough to pay past and future medical expenses; that is an interest to which you can cater by bringing into the room a structured settlement sales
agent who can appear to be more reliable than you in assuring that a particular structure, as a part of a total package, will provide that security the claimant seeks.

Lesson # 3. Separate the people from the problem.

Harvard Professor Roger Fisher, who co-wrote the best seller Getting to Yes: Negotiating to Get What you Want, used the phrase “separate the people from the problem”. What he pointed
out was that parties often get distracted by assumptions or anger involving the other people on the other side of the negotiation. That assumption or anger may cause their mind to internally block
any desire to reach a reasoned compromise. Indeed if each of the opposing attorney negotiators hate each other their subconscious minds are actively trying not reach a compromise solution (as a
subconscious way of punishing the hated adversary), or to cling to impossible goals, again as a way of punishing the hated adversary negotiator.

It’s true — if you can establish a productive working relationship with your adversary negotiator as a person, rather than as the symbol of the adversary, you are more likely to get a full exploration of finding the solution of the mutual problem of a securing a negotiated compromise settlement.

Approach the adverse negotiator as a real person, not as part of the enemy camp within a wall. Separate him/her from the problem of finding a compromise for the parties. Get
rid of your anger (but not your caution); and get rid of their anger.

I suggest one of the best ways of separating the person from the problem — and establishing a productive working relationship with your adversary – is to “do lunch”. Request a lunch meeting. Start the lunch with the specific request that you enjoy the food, and not talk about the case in issue for a half hour. During lunch with the adversary, have a social conversation: ask questions about their personal life, as you would at any social party where you were meeting a person for the first time. They will usually respond by separating you from the problem of a compromise solution.

Lesson # 4. Develop your OATNA, not your BATNA.

“What’s your BATNA – your Best Alternative To Negotiated Agreement?” has become a popular “buzz phrase” in law school negotiating classes. As a result a BATNA has tended to be the first thing that the so-called “trained negotiator” thinks of when developing ideas for negotiating with the other side.

It’s true that the better is your client’s best alternative to a negotiated agreement (BATNA), the stronger is your leverage to get a successful settlement.

Unfortunately by putting a BATNA first in thinking, that one big BATNA tends to become the “only thing” that the negotiator thinks about as his/her alternative. Furthermore, the other side in most litigated cases knows that your one big BATNA to settlement is a trial. No surprise there, and if both sides have the same BATNA, no advantage because of BATNA versus BATNA.

The best negotiators think about the total universe of “other alternative(s)” – please note the plural “s”. That is, they think about the OATNA – your “Other Alternatives To a
Negotiated Agreement”. The best negotiators create a ranked range of alternatives to a trial, and let the other side know all their OATNA.

For example the alternatives to a negotiated settlement might include not only going to trial, but also might include making a formal request to the court for the requirement of negotiation to be continued at other times, and also might include a statement that you will bring your ultimate decision maker to the table but only if they have their ultimate decision maker with full authority at the table. Still another OATNA, often a powerful tool for a well-financed defendant versus a solo attorney representing a personal injury client, is an option to initiate a series of discovery before continuing negotiations.

Still another OATNA, which frequently should be mentioned to the other side, is your option to initiate motions that are not “slam dunks” for you but have a more than likely chance of succeeding in whole or part. The other side quite frequently only thinks you have only one BATNA. They are surprised if you interrupt a discussion of an issue in negotiation to say something like:

“If we really can’t get this settled today, tomorrow I’ll start drafting a summary motion judgement to get rid of the issues of X (or e.g., a motion to exclude your expert’s testimony). I know that the motion is not a sure thing, but it’s one item that is stronger for me than it is for you.”

“If we lose we won’t have lost anything on our side in the negotiations, because right now you are not really considering that issue’s effect on the valuation of the case. But if we win on the X issue, after judge rules, we’ll be back here again, with your room for negotiation being smaller, and your client being less happy.”

Then, while they are mentally chewing on that, move back to discussing the topic you had interrupted to give the other side one of your OATNAs.