Effective negotiation tactics

The Basics of Effective Negotiation

The ability to effectively negotiate is a skill that few people possess. In our society, we have relatively few opportunities to negotiate and those are generally limited to purchasing a house or a car. We do not go down to the local market on a daily basis and haggle over the price of tomatoes with the vendor. We go to a supermarket and pay a fixed price. Few of us visit the pawn shop to buy merchandise and test our negotiation skills there. The limited amount of opportunities that we do have to negotiate tends to hinder us in not only the consumer context but also in the legal context when we are forced to do so.

Judges prefer the parties to reach their own resolution to a case and will often steer the parties towards mediation. The problem with this is that many people want their day in court or feel that they are entirely in the right and the other side is completely in the wrong. They also believe that a judge will see everything their way and find that the opposing party’s case is made up of nothing but lies. Judges often find aspects of each side’s case to be compelling and make their findings based upon evidence presented by both sides. It is not uncommon for a judge to “split the baby” simply because “the truth” often falls somewhere in between the opposing views of the parties involved. Since this is often what happens, litigants can save enormous amounts of time and money when they reach a middle ground through their own efforts prior to undertaking significant legal measures against each other. With that in mind, here are ten tips for effectively negotiating your legal matter.

1. Define your goals prior to entering into negotiation. Let’s look at negotiation through the landlord/tenant lens which is often in the eviction context. If you are a landlord processing an eviction, your principal objective is to get the tenant out of the premises as soon as possible. You may also have as a secondary goal of recovering some of the money that is owed to you. Or you may just want to get the tenant caught up on what they owe and keep the tenant in the rental unit. You cannot effectively negotiate if you are unsure of what your goals are from the outset.

2. Determine what the opposing party’s goals are. In the eviction context, it is not unusual for a tenant to be in the process of moving out at the time of the eviction hearing. A tenant’s natural reaction is to fight the eviction even if they are in the process of vacating. Before that legal battle begins, the landlord should determine if the tenant even wants to remain in the rental unit. If the tenant is in the process of vacating then there is not much to fight about. If the tenant simply needs more time to vacate then the landlord can use this to his advantage. If one of the landlord’s goals is to collect some of the money that is owed, he can propose that the tenant pay something towards that balance in exchange for the right to remain in the premises for 10 more days. If the tenant wants the eviction action dismissed, the landlord can agree to do so after the tenant has paid x amount of money and vacated the premises on or before a certain day. Knowing the goals of the opposing party can go a long way towards reaching a resolution.

3. Determine your opening position based upon your goals; what you know of the other side’s goals; and what you know of the legal process. If your goal is to get the tenant to vacate the unit as soon as possible, take stock of the tenant’s goal and the likely outcome of the legal process. The tenant’s goal may be to get 10 more days in which to move out. The best outcome via the legal process would be obtaining the eviction judgment today but still taking two weeks to go through the red tag and potential set out process (not to mention the costs involved with that process). A likely legal outcome is the tenant requests and receives a one week continuance of the eviction hearing. Such an outcome would add another week to the red tag and set out process and involve an additional trip to court. Given these factors, it may be sensible to agree to a vacate date within the next ten days.

4. Understand the direction of negotiation. The goal of negotiation is to work towards a common middle ground. Negotiation doesn’t work if one side insists on its best case scenario as the only resolution. The opposing side might as well take its chances in front of the judge. Each side has to be prepared to give in order to work towards the goal of resolution. Resolution lies somewhere in the middle ground. It is typically not an effective negotiation tactic to make an about face an d move away from the middle ground during the negotiation process. A basic example is if you’ve offered to pay $500 to resolve a legal matter; the other side has countered at $700 and then you counter at $300. This is not effective negotiation.

5. Each side must be able to properly evaluate the risks of failing to reach a resolution outside of the court process. This is called risk evaluation and includes a comprehension of best and worst case scenarios as determined by a judge; the most likely resolution; and the costs involved to get to that point. Costs include much more than additional legal fees. They also include additional court time by the parties; time away from work; time away from family; more time spent on the legal problem; additional expenses including court costs; etc. In our example above in #3, the landlord may face the additional costs of red tag and set out fees; hiring a crew to set out the tenant; renting a truck to set out the tenant; being away from work to attend another hearing and a set out; additional legal fees for lawyer attendance at a second hearing on the same matter; additional damages to the premises caused by an irate tenant; etc. Theses costs are the price of failing to effectively negotiate.

6. Understand how the law affects your position and what the likely outcome of the case may be. This is related to #5 above but is worth emphasis. Listen to your lawyer. After all, you hired him for his legal advice. Many people want to insist upon their day in court as if it were their god-given right and don’t want to listen to their lawyer’s advice concerning out-of-court resolution of it. If a judge feels that your case is one that should be resolved through negotiation then that means that he doesn’t want to hear your god-forsaken case. If your lawyer points out the weaknesses of your case, try to take that advice to heart and profit from it through engaging in meaningful negotiation. If your lawyer attempts to correct your misunderstanding of the law, listen to him. I often run into tenants who are under the mistaken impression that if anything is invalid in the lease then the entire lease is invalid. Tenants often believe that they have a valid defense to an eviction if the dates of the term of the lease are wrong or if there is some other minor error in the lease. I run into others who attempt to decipher a legal statute or explanation of one and only latch on to points in that statute that are helpful to them and ignore everything else. Sorry, you can’t just pick and choose what you want out of a statute and ignore the rest.

7. Negotiation/mediation is not the time to present your entire case. It’s more important to give a concise presentation of the strong points of your case to the opposing side. Keep in mind that there’s no judge present during negotiations and that you are not going to beat the other side into submission with a filibuster concerning the minutae of your case. Mediators will often let each side present their case for the main purpose of letting them get off their chest what they want to say. They understand that effective negotiation can only take place when each side has had an opportunity to have “their day in court”, so to speak. If you must have your “day in court” at the mediation table, limit it to a concise and effective presentation of the strong points of your case and feel free to save some of your presentation for the court if negotiation fails.

8. A related point is to avoid the temptation to dump information on your opponent. In this day and age of electronic communications, I’ve had clients who have saved hundreds of emails, text messages, instant messages, voice messages, etc., and feel that this enormous assemblage of information is going to win the day for them. I’ve had clients insist that I forward all this information to the other side with the thought that once the other side reads all these emails, text messages and other garbage that they will instantly throw up their hands and surrender. It’s more likely that they won’t read any of it and that a judge would ignore it as well. Trust in your counsel’s ability to cull information and present what is relevant to your case.

9. Negotiation/mediation is not the time to attack any and all weaknesses in your opponent’s case. Save that for court if negotiation fails. The mediator is not there to make a ruling on the case. You only prepare your opponent for your arguments if you allow a previewing of them before court.

10. Treat the other side with respect. You are less likely to come to a resolution if you treat the other side poorly or with a lack of respect. Both sides have to work together to reach a resolution.