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Avoid Court Battles. A Few Tips for Dispute Negotiations.
In any negotiation during legal disputes, large sums of money can be won or lost depending on the skills of the negotiators involved.
So, here are a few tips for all dispute negotiators:
1. Use ‘Gunboat’ diplomacy.
Notorious American gangster Al Capone once mentioned that “a kind word with a gun is more effective than just a kind word.”
While obviously, there is no place for literally use firearms during legal dispute negotiations in law abiding societies, the principle still applies in a figurative sense, and you will be more effective when you have strength in your corner. This means being fully on top of your brief, understanding the strengths and weaknesses of your case (and the case against you) and having seasoned negotiators on your side.
Get the strongest case you possibly can, and then take full advantage of it.
Years ago, I read that the Japanese were more comfortable than Westerners with long silences during negotiation proceedings and were conscious of their Western counterpart’s lack of comfort in this area.
If this is correct, negotiators should not feel uncomfortable about asking a question or giving an answer and then waiting – it’s not often an easy task, especially for some who feel that they are in control of the negotiations or that they are paid to talk.
Do not repeat questions or answers, or feel any need to break a silence. Ask or answer, then wait.
3. Don’t bid against yourself.
Most negotiations involve opening offers, counter offers, offers in reply and so on.
But what if your opening offer is knocked back without a counter offer? A temptation for the ‘inexperienced’ is to make a more attractive offer. This is called bidding against oneself and should be avoided at all costs if you have a decent case.
Stick to convention. If your offer was first and has not met with a counter offer, just wait until a counter offer comes along.
4. Stand up for yourself.
Occasionally, you will come across an opposing negotiator who is a real ‘head kicker’ (easy to do when it’s not your own money at stake).
This is not an indication of a strong or weak case, though vitriol is often a camouflage for weakness, and you should not fall for this. Your case will be won or lost depending on its legal strength and your expertise and negotiation skills.
Know your case well and be prepared to stand up to bullies.
5. Don’t underestimate your opponent.
This is perhaps an irony, but sometimes the worst opponent you’ll get, is not the one with good lawyers or professional negotiators but rather an incompetent one, who in contrast to skilled lawyers and negotiators may lack understanding about fair and reasonable outcomes for certain given situations and may feel his or her case is stronger than it actually is. For this reason, do not make assumptions about your opponent, and do not presume that logic will conquer all.
6. Make sure you got all day.
Every negotiation has its own rhythm, character and drivers. Arriving at a final outcome is a process which happens at a certain pace and allows for hardened views to soften. This often takes the better part of a day and can go on until late at night.
Be prepared for this. Allow plenty of time and do not assume things will happen quickly.
7. Don’t tire out.
Even if the mediation process is going well, if it’s late, there is a risk that the negotiators are becoming exhausted.
Don’t let this happen. Take breaks for meals, coffee or a walk, or ring up a colleague for another perspective.
Be ready for a long negotiation and ensure you are in adequate physical and mental condition to see this through.
8. Beware the ‘scalp hunter’ mediator.
Occasionally, you will come across mediators who pride themselves on accumulating ‘settlement scalps’ and who literally terrify disputants into an outcome often so by extolling the downsides of going to court and –conveniently- avoiding to mention some potential upsides such as precedent value, sending out a signal, the rule of law or -where the other side fail to appreciate that their offers are inadequate- getting a better economic outcome.
Never be bullied or let anyone convince you that your strong case is really a weak one.
9. Draft settlement terms carefully.
The devil is in the details and it is crucial that the agreed settlement terms are carefully drafted regardless of how desperate the parties are to go back home. Mistakes at this stage can lead to major fallouts difficult to deal with.
Now... Are you ready to negotiate?
Source: Professor Kim Lovegrove FAIB
Reviewed: Max Esquivel / ABC Specialized Legal Services.