How to Stop Being a Bully and Learn to Negotiate

Did you come out of law school determined to win at all costs?

Were you willing to get those results even if it required intimidation, bullying, and threats?

Did you think this was the way lawyers were supposed to act?

At some point, did you just get disgusted with yourself?

This is where I find many lawyers ending up today in my coaching office. As attorneys, we had to fight to get into law school, compete with others to get good grades and on law review, and fight to pass the bar. Then we had to fight to get a job and pay our ridiculous student loans back. We finally ended up at our desk one day fighting to find an error that our “adversary” overlooked so we could ram down his or her throat. This is not a nice way to live and grow in our quest to help people in the legal system.

But there is another way to get what you want: Negotiation.

Many lawyers are actually afraid to learn and use negotiation techniques. They are afraid they will look:

• scared,
• unaggressive,
• ineffective,
• like they are willing to settle for a small amount, or
• like a weak adversary.

These fears cause attorneys to turn to alcohol, drugs, and all sorts of other methods of self-medication to dim their awareness of what they are doing to themselves. They need to convince themselves they are not lonely and isolated in being angry, aggressive, and pig-headed.

If lawyers begin to perceive adversaries differently, a paradigm shift can happen. Lawyer can:

• begin to see the other side as partners in solutions;
• acknowledge that the adversary is a human being with all the complexity that humans have to deal with;
• see that a win-win result may be the best solution for your client;
• recognize that employing negotiation skills when appropriate is stress reducing;
• appreciate that a skilled negotiator is made and not born; and
• accept that learning negotiation techniques broadens an attorney’s ability to approach each situation uniquely.

Negotiation Techniques

I hope I have convinced you that life would be easier as an attorney if you added negotiation to your skills.

So, let me give you a few ways of looking at negotiation and some tips that might be helpful:

• Always negotiate from strength. This means you must do your homework to identify what reason the other party has for negotiating with you. This doesn’t mean that you walk in and lay all your cards on the table.
• Evaluate the worst loss you could have by not settling. This frequently gives you some way of shaping expectations for your client as well as setting a boundary for your worst case.
• Evaluate the best deal you could make. Imagine getting everything you want, but make it reasonable. Don’t set a million-dollar threshold when you only have $1,500 in damages.
• Identify the type of negotiator(s) who might be on the other side (if you can). Are you expecting a great deal of aggression? Passive hostility? Or something else? Decide what might be your best strategy with the types of negotiator(s) you will be dealing with.
• Thoroughly brief your client prior to the actual negotiation session. Make sure the expectations are realistic. Explain what their “job” is in the negotiation and what your “job” is.
• If possible, have a conversation with the person (people) on the other side prior to the actual negotiation. You don’t need to discuss the actual negotiation, but you can find out a lot by touching base about who will attend, anticipated time to spend, and such things. This will give you a feeling of the kind of people you will be dealing with. Do not discuss the actual case at this point, as the other party will try to find out where you are with the case and your bottom line. This is just a touch-and-chat meeting, so don’t give away any information.
• Be sure to build up your confidence before the actual negotiation. You want to convey quiet confidence in your view, but not with threats or bullying. You want to settle but not give away the farm. This attitude can be conveyed by how you phrase your demands and receive offers. Talk about the advantages to the other side of accepting your proposal. Offer reasonable alternatives.
• Recognize that you also negotiate every day in small ways, not just when preparing for a formal mediation. You negotiate with your family and friends at home, at work, and when out in public. Use the same techniques, and get used to modifying your demands—but know your bottom line.

If you are negotiating as part of a mediation, consider the tips below:

• Accept the fact that you have an additional person whom you will need to persuade. The mediator’s needs are different from those of the parties. Mediators have a strong desire to settle the case. They want to appear fair but influential.
• Remember that mediators have at least two parties to satisfy, sometimes more. I remember a probate mediation where I had three parties all making claims against a big estate. As a mediator, I first had to ferret out what a court might award and then work backward to convince the parties, who all had idealistic expectations, that simply demanding was not going to produce results. (By the way, none of the parties spoke English, but happily for me, their attorneys did.)
• Take a quick look at what challenges the mediator will face in satisfying all parties. This insight is often overlooked—to the peril of the client.

My friend, Steven Mehta, who is a full-time mediator, recently wrote an article about the advantages of storytelling. This might be another skill you want to add to your negotiation toolbox. You can find his article, “War Stories, Fairytales, and Lawsuits: The Power of Storytelling,” in the July/August 2022 issue of GPSolo magazine.

We don’t usually get everything we want in negotiation, but we usually get more than we would have gotten had we not negotiated. It’s a whole lot less stress, too!

The last thing that I would suggest is to keep a negotiation scorecard. Try using new ideas and shift your techniques. Rate the negotiations on your scorecard and see if you are getting better results. I bet you will!