Better Negotiations

No matter what type of law you practice, the ability to negotiate well is a vital skill. Whether settling a claim, obtaining favorable terms on a service contract, or reaching a plea deal, you are engaged in the act of negotiation. Follow these tips to become a better negotiator.

Preparation and planning are paramount

Ask your client to articulate her priorities very specifically. Then listen to not only what your client says, but what she really means. What does she absolutely have to have and what does she want, but will compromise on? Create a list of the absolute must-have items, secondary points that are important, but not vital, and low priority goals. 

Make sure the decision makers are present

Begin your negotiation by asking who must be consulted before the parties can reach a decision. Request that this person or persons be available for the negotiation.

Communication is the cornerstone

Communication takes all forms including written, verbal and non-verbal. Non-verbal communication is probably even more important than what is communicated verbally. Learn to read body language since those signals sometimes override what is being spoken.

Who should make the first offer?

It depends. Let your opponent make the first offer if you need more information about how your adversary sees her case, especially if there is no other way to learn this. On the other hand, you should make the opening offer to take advantage of the opportunity to anchor. Cognitive psychologists have found that the first number that we hear exerts a powerful influence over any subsequent analysis of objective as well as subjective value. Making the first offer and anchoring your adversary is a way to influence your adversary's decision making and evaluation process.

In persuasion, context is everything

Context is a powerful influence in our negotiation decisions. How would your client likely feel if he were offered a settlement of $200,000 along with the knowledge that comparable cases had settled for $300,000? Keep context in mind.

Avoid sellers/buyers remorse

Studies have demonstrated that procedural fairness is as important if not more important than the substantive outcome. Four criteria influence the perception that a process is fair. They are a) the ability to be heard, b) the neutrality of the process, c) adherence to formal rules and policies, and d) respect and the quality of treatment of the participants.

Put it in writing

Take full and accurate notes during the negotiation process so that you can refer back to them when drafting your memorandum of understanding (MOU). Ask your client to review it to make sure you do not leave anything out or were mistaken about the terms or provisions. If there are some additional revisions to the MOU between you and your adversary, use email to communicate so that even those discussions are in writing and be sure to carefully read the MOU each time it comes back to you. You do not want to be surprised by slight modifications the opposition made, either honestly or unethically.