"I don’t know—at least not yet," I reply. "You’ll have to read the ‘tea leaves.’ More often," I explain, "it is not the amount of money he demands but, rather, the way he demands it, the words he asks me to accompany the demand."
"Well, I know him," she says, "and I think he’s way out of the ballpark."
"Perhaps, but he says the same about your offer. It’s called ‘negotiating.’"
Not an untypical exchange in caucus between mediator and attorney for either side. I call it the "credibility game." Neither side wishes to tip their hand on the settlement amount they seek. Indeed, they may not know. They know what figure they would like, but they realize that is not the way the game is played.
I often express regret that there is not a schedule of benefits for tort claims, as in workers’ compensation. But, then, such a schedule likely would be criticized by either side or both sides as being arbitrary and unfair.
Negotiation, fortunately or unfortunately, almost always involves a battle of wits. The attorney asks himself or herself: Should I lose my temper? Should I kill him with kindness? Should I criticize his unprofessional behavior? Should I compliment his negotiating skills? The answers to these questions are yes—and no—and sometimes. So much depends on the personalities of the attorneys and adjusters, occasionally even the clients who have been known to ignore their attorneys and grab the podium.
From a mediator’s viewpoint, whatever works (within the bounds of common courtesy and ethical behavior) is fine. It is very satisfying to me when I discover the attorneys know and respect each other. They already have a good idea what to expect, leading to either a quick settlement or a quick impasse-with no hard feelings and the understanding that they will continue negotiating.
The tough case arises when the attorneys do not respect each other and one or the other perceives (or, for whatever the motive, accuses) his or her opponent to be unethical or unprofessional, or at a minimum unreasonable. Whether or not opposing counsel is does not matter. It is the perception that prevails. And the mediator must somehow overcome the roadblocks created by those perceptions and/or such rhetoric.
Yes, negotiations are steeped in clichés, but so what? Even clichés carry messages, and it is the message that often carries the day. Small, incremental moves coupled with words like "There isn’t much more" or "We’re close to where we want to be" or "We’re close to our bottom line" have to be weighed carefully by the listener.
Similarly, large monetary moves along with remarks like "We’re making a substantial move and expect the same in response" also hint at a top or bottom line. In either case, however, it cannot be assumed that what is said is what is thought. Listen carefully also to what the mediator says. His or her purpose is to convey the essence of a message that, on the one hand, avoids the strident rhetoric with which it may have been imparted, while, on the other, offers a clue as to where the other side is going.
I wish I could reveal some deep, dark secrets to the negotiating process. There are none. It is a game and one that participants must play. Unless, of course, you choose not to play, always your right. You may decide to leave the matter in the hands of a third party, in which case both sides forego all control over their clients’ fates and commit themselves to letting the devil take the hindmost.
What do you think? What do you expect from opposing counsel? How do you respond to "fire and brimstone" rhetoric? Do you engage in it yourself? Is it worthwhile to be completely straightforward and candid in your advocacy? Give us your opinion. We seek enlightenment.