Effective Negotiation Strategy Is an Essential Element of Litigation

Negotiation theory is generally based on two models of negotiation:

– positional negotiation, which includes terms such as “distributive,” “competitive” and/or “adversarial,” bargaining

– interest-based negotiation, which includes terms such as “integrative,” “problem-solving,” or “cooperative problem-solving,” or “collaborative” bargaining

Prof. John Lande, of the University of Missouri School of Law’s Center for the Study of Dispute Resolution, also theorizes a third model, which he calls “ordinary legal negotiation”, which is a hybrid based on norms that develop in certain practice areas, geographical regions or under specific court or ethical rules.

In a pair of forthcoming articles in the Cardozo Journal of Conflict Resolution, Prof. Lande, argues that:

The prevailing negotiation theory tries to fit lots of square pegs into just two round holes–adversarial or cooperative bargaining. In the real world, negotiation comes in many different shapes, not just circles and squares.

John Lande, “A Framework for Advancing Negotiation Theory: Implications from a Study of How Lawyers Reach Agreement in Pretrial Litigation”, 16 CARDOZO JOURNAL OF CONFLICT RESOLUTION

The articles are based on a series of interviews with US trial lawyers in a variety of practice areas. Study participants said every step in litigation is part of an overall settlement negotiation strategy.

During pretrial litigation, lawyers regularly reach numerous agreements with many different people on the path toward resolving their cases. Most obviously, lawyers negotiate with each other about matters such as “acceptance of service of process, extension of filing deadlines, scheduling of depositions, resolution of discovery disputes, and numerous other procedural matters.” Lawyers agree with clients about the tasks that they each will perform and how the lawyer will to respond to the other side at various points during the litigation. Lawyers reach agreements with people such as co-workers in their firms, process servers, investigators, court reporters, technical experts, financial professionals, and mediators. Lawyers regularly reach agreements with judges about case management issues such as discovery plans and schedules, referral to ADR procedures, and ultimate issues during judicial settlement conferences. Although the process of resolving difficult disputes with counterparts about the ultimate issues merits serious attention, focusing exclusively on those interactions overlooks the vast number of lawyers’ interactions in which they try to reach agreement. Indeed, the instances of lawyers seeking agreement without difficult disputes are so plentiful and obvious that it is as if they are hiding in plain sight. [Lande, Framework, p 14-15]

In a second article based on the same lawyer interviews, Prof. Lande argues that it is generally better for parties to “get to yes” sooner rather than later and proposes strategies for lawyers to negotiate better settlement agreements.

John Lande, “Good Pretrial Lawyering: Planning to Get to Yes Sooner, Cheaper, and Better” 16 CARDOZO JOURNAL OF CONFLICT RESOLUTION

The lawyers in the Landes study generally said it is smart to negotiate early in any litigation case.

He also quotes retired Judge Robert Alsdorf [Washington state] who says, “Being willing to negotiate doesn’t make you look weak. Being afraid to negotiate makes you look weak.”

Just because lawyers work in adversarial system, they do not have to be adversarial with each other, Landessays. He refers to “counterparts” rather than “opposing counsel” to reflect this idea that lawyers must be willing to work together. They are advocates, not simply adversaries.

Negotiation literature describes a “competitive / problem-solving” approach in which negotiators get favorable results for themselves in a process in which they act in a congenial manner. [Good Pretrial Lawyering, at p. 40]

The word “trust” comes up often in the Lande study. If counterpart lawyers believe they can trust each other, they can much more effectively communicate their own client’s needs, wants and fears and better understand those of the other parties in the dispute.

This does not imply that trust is blind to the motives of the other parties to the negotiation. But it does allow lawyers to be tough when they need to be; co-operative when that will help to advance the case toward resolution.

Having good relationships [with counterparts] can help lawyers “create” value in negotiation. Considering that many litigants go to trial when they would have been better off by accepting their counterpart’s last offer, just reaching an agreement typically creates value for the parties… [Good Pretrial Lawyering, p. 41]

The big challenge in creating value is that parties normally do not disclose their interests to their counterparts because they fear the counterparts would take advantage of the information. [p. 42]

If counterpart lawyers have a good relationship, they are more open to discussion, communicate more easily, trust each other more, are more candid, and take more reasonable positions, which obviously can make it easier to reach agreement and to save clients’ time and money. [p. 40]

One’s counterparts normally will not negotiate seriously until they can reasonably evaluate their cases. As one lawyer put it, “people can’t negotiate until the cards are on the table.” Therefore lawyers should efficiently share information so that both sides are prepared to negotiate. [p. 34]

In cases that are likely to settle, lawyers must find the right balance between under-preparation and over-preparation. The essence of the problem is developing a sufficient understanding of the case, given cost constraints, incomplete or inaccurate information (including clients who are less than forthcoming about the facts).

[I]t is not always possible to develop good relationships and trust counterparts. “Some lawyers or clients are completely selfish, have no concern for others, are not open to evidence or reason, and may actually enjoy conflict and inflicting suffering on others.” Lawyers may worry that their counterparts have such motivations, though these situations probably are less common than they many people think. It is usually worth trying to develop good relationships and if the counterparts rebuff the effort, this is an important signal that can prompt lawyers to be appropriately vigilant. [Good Pretrial Lawyering, p. 31]

Some lawyers may not want to start negotiating early because they are not open to early negotiation, either generally or in particular cases. The lawyers in the Lande study said they personally were open to early negotiation in appropriate cases, but several suggested that other lawyers do not consider negotiation early in a case due to habit, procrastination, “inattention” to their cases, or heavy case loads. [p. 12]

ADR practitioners frequently hear these kinds of comments. Everyone thinks they are being reasonable and willing to negotiate, but “the other side” is not ready, willing or able to negotiate seriously. Sometimes, it is the lawyer’s own client that is not prepared to negotiate. The result, often, is to delay negotiation until the client or the other side is more amenable to settlement. This may simply be a factor of time and rising costs, or it may be the result of disclosure of new information that changes the assessment of the case. But in most cases, delaying negotiations will increase costs and reduce the range of acceptable settlements.

Lande concludes that good negotiation strategy involves developing conscious plans about goals and timing of the process, taking control from the outset, managing the process effectively, generally trying to develop good relationships with counterparts, and looking for opportunities to create value in negotiation. [Good Pretrial Lawyering, p. 43]

In his Framework article, Lande says:

[U]nderstanding negotiation requires scholars to focus on litigotiation [litigation negotiation], “the strategicpursuit of a settlement through mobilizing the court process.” In practice, lawyers know that most cases will not be tried. Although lawyers may prepare and posture as if a case will be tried, most realize that pretrial maneuvering is designed primarily for leverage to get the best possible settlement. Good lawyers “prepare for settlement from day one of the lawsuit.” [Framework, p.53]

There is significant confusion in negotiation theory about the traditional models of negotiation. Although there is a general consensus about the existence of two traditional models, there is no consensus about the defining features of these models, which probably is why there is a profusion of different terms for them. [Framework, p.54]

The Lande articles show how the traditional negotiation theories are applied in practice. They attempt to “unbundle” the features of the different models – including his own “ordinary legal negotiation” framework.

Most legal settlement negotiations do not fall at the extreme ends of an adversarial/collaborative continuum. They fall at various points in the middle. The framework Lande proposes can help both scholars and practitioners analyze negotiation strategies and develop more nuanced and effective approaches for particular situations.

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