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GETTING READY TO NEGOTIATE Francis G. Murphy
Stewart & Murphy, PA
A. Introduction:
Negotiation strategy has undergone considerable analysis and commentary since the publication of Getting to Yes: Negotiating Agreement Without Giving Up in 1981.1 The book was an outgrowth of the Harvard Negotiation Project. See generally www.pon.org. The Harvard Negotiation Project “develops and disseminates improved methods of negotiation and mediation.”
In Getting to Yes, the authors distinguish between what they call the traditional “position-based” negotiation and their recommended “principled-based” negotiation.
The traditional form of negotiation is characterized by the assertion of opposing positions by the parties. In most disputes, there is the question of a “pie” that is sought to be divided up. In position-based negotiation, the view is that the “pie” is of a fixed quantity such that a greater share for one means a lesser share for the other. That is, the negotiation represents a “zero-sum gain.”
In principal-based negotiation, the theory is that the parties are much more likely to come to a mutually satisfactory outcome when their respective interests are met, instead of when one “position” wins over the other. By focusing on the interests to be satisfied rather than the positions to be won, the principal-based negotiation seeks to expand the pie, giving each side more in hopes of producing a “win-win” result.
Getting to Yes recommends that four principles should be adhered to to achieve a settlement that is mutually beneficial to the parties. The principles are:
a. Separate the people from the problem.
b. Focus on interests, not positions.
c. Invent options for mutual gain.
d. Insist on objective criteria.
Separate the People from the Problem:
Many disputes have emotional issues where personal animosity can run high. Perceptions, emotions, and communication problems interfere with identifying the substantive matters at issue in the dispute. They also get in the way of finding an acceptable solution or settlement.
Focus on Interests, Not Positions:
Positions are predetermined outcomes that may not be easily satisfied. Also, it is extremely rare when a position can be fulfilled to both parties’ satisfaction. Interests, however, are needs that may well be met to both parties’ satisfaction to a greater or lesser extent. Identifying all the interests of your client, as well as those of the opposing party, is a key factor in helping to achieve a mutually acceptable resolution of the dispute. To do so, you must look beyond the parties’ stated position and inquire into what his or her true array of needs are.
Invent Options for Mutual Gain:
Once the interests of the parties are known, options for mutual gain can be discovered. These potential solutions or partial solutions should attempt to address issues and concerns of each party. The idea is to broaden possible solutions.
Insist on Objective Criteria:
Use of objective criteria to measure settlement options allows the parties to fairly evaluate the settlement options. Reference to objective criteria can limit the gap that separates the parties to the dispute. Objective criteria can help move the discussion away from emotionally-laden issues.
The authors of Getting to Yes also recommended going into negotiations after having identified your client’s BATNA – an acronym that stands for “the best alternative to a negotiated agreement.” Any proposed settlement should be measured against what the party can most likely achieve when negotiations fail. What are the realistic alternatives to settlement? Can you afford to shut the door on the other side’s bottom line settlement proposal because there is an option available that promises a better result?
B. Evaluating the Client’s Goals:
! Most cases settle
! ADR or Informal Settlement Negotiations
C. Client’s Goals:
1. Initial Interview - who is the client?
! Analyze the dispute.
! Are there other decision-makers besides client: parent/spouse/confidant/Guardian Ad Litem?
! Is there a statute of limitation concern?
! Who are the other potential “parties? Nilsson/DeBenedetto concerns.
! Collateral benefits.
• Workers’ comp. (holiday).
• SSD.
• Medicaid.
• McDonald’s Verdict v. New Hampshire juries.
• What are the emotional dimensions of the dispute?
2.Outlining the Process to the Client:
! Pre-suit:
• Investigation.
• Collecting the records.
! Administrative requirements:
• Notice.
• DOL/Human Rights Commission.
! Filing suit - venue.
! Attachment.
! Pre-trial discovery.
! ADR.
! Trial.
3. Identify ALL of your client’s interests:
! Will a settlement advance your client’s interests?
• Money.
• Vindication.
• Perception that justice has been served.
• Desire to be treated fairly.
• Apology.
• Structural change (“I do not want this to happen to another.”).
4. What are the other side’s interests?
5. Identify the client’s “BATNA”
BATNA – an acronym that stands for “the best alternative to a negotiated agreement.” Any proposed settlement should be measured against what the party can most likely achieve when negotiations fail. What are the realistic alternatives to settlement? Can you afford to shut the door on the other side’s bottom line settlement proposal because there is an option available that promises a better result?
6. What are the obstacles to realizing the goal?
? Unrealistic assessment of the applicable or what facts can be proven
? Unequal bargaining power and lack of good faith participation in negotiations
? An absent, indispensable party. For example, a spouse
? A lien holder owed a lot
? Standing on principal–staking out an unyielding position
? A perceived need for vindication
7. Opinion on case value:
! Too early to tell?
! Elements of the cause of action.
! Problems of proof.
! Factors that influence value.
• Insurance limits.
• What legal/equitable remedies.
! Personal injury:
• Liability issues.
• Extent of injuries.
• Medical bills.
• Duration of treatment.
• Nature of treatment.
• Chiropractic.
• Medical.
• Alternative.
• Scarring.
• Permanent impairment.
• Pre-existing injuries.
• Comparative fault.
• Soft tissue injury.
• Low impact.
• Doctor testimony.
• Health insurance.
• Subrogation/reimbursement issues.
! Commercial litigation:
• Liability.
• Causation.
• Damages.
• Mitigation.
! Nail and Boards:
• Breach of contract.
• Material breach.
• Compensable damages.
• Mitigation.
! Unfair Business Practice:
• Willful breach (does it apply?).
D. Case Investigation:
! Hiring an investigator:
• Witness statements.
! Hiring an expert.
! Who is the defendant?
! Rule 4.2g Rules of Professional Conduct.
E. Developing a Framework for Settlement Negotiations:
! A phased approach:
• Phase I – after initial investigation and record gathering:
• Claim review and evaluation.
• Identifying the interests of the parties.
• Identifying what more needs to be done.
• Phase II – readying the demand pre-litigation:
• Client permission and authority.
• Laying out the claim.
• Attaching relevant documents, photos.
• Start high but how high?
• Don’t feed client’s high expectations.
• Phase III – the hierarchy of ADR options:
• Settlement.
• Mediation.
• Non-binding arbitration.
• Binding arbitration high/low.
• Neutral case evaluation.
• Summary jury trial.
• Jury trial.
F. Settle or Litigate:
1. The risks of a jury trial are considerable and these should be explained to the client:
! Victory is never assured.
! You will not know anything about your jury until the eve of trial.
! Will the witnesses cooperate?
! Will the expert come through – is there an unknown Achilles heel?
! Does the law clearly support the claim?
! What are the expenses of litigation and trial? Can the case support them?
! Is there a surprise fact or witness out there?
! Will you get that jury instruction you need?
! Will there be an Appeal?
2. Factors that favor settlement:
! A settlement resolves the dispute without litigation and all the expense and uncertainty that attends a jury trial.
! Avoids contact with other side.
! Maintains confidentiality.
! Pre-discovery settlement may be advantageous.
! May preserve a valuable relationship.
3. Obstacles to Settlement:
! Desire for vindication.
! Unrealistic goal (or positions).
! Non-monetary factors.
! Need for catharsis/venting.
! Need for discovery.
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