In every dispute a client calls me in to work to resolve, my first inquiry with the other side is to discuss the possibility of early resolution. If we can explore this option even before any litigation has been initiated, it’s even better.
The other side often responds that they too want to negotiate to resolve the matter without either initiating or continuing litigation. Even thought they don’t always advise their clients to resolve the dispute without starting or prolonging the litigation, most lawyers recognize that early resolution is almost always in their clients’ best interests.
There are several compelling reasons why this is true. First, an early resolution will save the parties time and money and will prevent the draining of resources and energies. Second, if relationships between the parties are important, early resolution offers the best chance for preserving important business or family relationships. Third, the parties hold onto control of the process and the outcome, rather than giving these up to a third party like a judge, jury or arbitrator to decide. Fourth, the process and outcome can be kept private and confidential.
Once I hear some buy-in from the other side to work at a negotiated resolution approach, I’ll suggest some basic rules of engagement, based on the model suggested in the groundbreaking book “Getting to Yes”. That model is built on the concept of interest-based or “principled” negotiation. This is where the first test of the lawyer and party on the other side comes, to see whether they really do want to pursue a negotiated settlement or are just reciting the words or posturing.
The language, the approach, and indeed the mindset of those who truly practice interest-based negotiation are different from those of lawyers who operate in litigation or “adversarial” mode. That is not their fault. The adversarial process is what litigation and civil procedure is built upon; it’s what we were all taught in law school. But it is usually detrimental to interest-based negotiations. They are not compatible, and are far more different than a lot of lawyers realize. Positional, adversarial is a strategy designed for one side to win and the other side to lose. It is built to convince and persuade the other side to come around to “my side”, “my view” and “my position”. It is not intended for use in an approach designed for win-win, in which parties and lawyers must work together, understand and acknowledge the other sides’ needs, interests and goals and collaborate on developing a mutually desirable outcome.
Here’s how this language/approach barrier typically arises between lawyers: I’ll suggest that we identify the interests of our respective parties and discuss what it would take to satisfy those interests. We may even agree on what the opposing party’s interests are and ways to meet those needs. We then agree to go back and discuss this approach with our clients, maybe even have a joint face to face discussion with parties and lawyer all together around a conference table. I end the call or meeting and think: Good first discussion; we are off to a good start.
Then a day or two later, I’ll get an email from the other side that reads something like this: “As a follow up to our discussion, please be advised that my client’s settlement offer is $60,000. This offer will be on the table until the close of business Friday. If you do not accept this offer, we will proceed to arbitration.”
Huh? What happened there? I’m reading this response, wondering if we were both in the same prior conversation. When did we talk about offers? We weren’t nearly there yet. The language of “offer and counter offer” is not the language of interest-based negotiation or collaborative dispute resolution. In a successful interest-based negotiation or process, it’s not even likely that there would ever be an “offer vs. counteroffer” scenario and there would never be any “deadline/ultimatum” language between the lawyers. What there would be is some more work to be done – usually some information exchanges – before we even start to consider working together to develop good options for resolution.
It’s not easy to transform the approach, the language, indeed the lawyers, to a truly interest-based discussion and negotiation. And it’s probably not this first exchange between the lawyers, but then next one and all those that follow, that will reveal the other side’s desire and ability to work within these different rules and conversation. But it is where the transformation to efficient, sensible dispute resolution begins.