This is Part Three in a series of articles focused on improving negotiation skills. In Part One, I used a baseball analogy to describe effective lawyers, calling them five-tool lawyers. (Lawyers who do these things well: (1) analyze (2) write (3) probe (4) persuade, and (5) negotiate.) In Part Two, I focused on the importance of lawyers confirming their clients’ goals and interest in the early phases of disputes. In this article, I turn from baseball to rock and roll for inspiration.
In the Beatles’ second US album, aptly named, The Beatles’ Second Album, the Fab Four covered a Motown song called, “Money (It’s What I Want)”. The chorus is a familiar refrain for civil trial lawyers:
- Now give me money (that’s what I want)
- That’s what I want (that’s what I want)
- That’s what I want (that’s what I want) yeah
- That’s what I want
That is not to ridicule the role of money in a civil lawsuit (or the advocates who prosecute or defend them). It is simply to acknowledge the fact that, with few exceptions, money is the currency that settles civil cases. 1 Unlike community disputes or nation-state conflicts where a plethora of bargaining chips may be on the table, civil disputes are mostly about money. 2 Therefore, parties in such cases usually negotiate through position-based bargaining, where
1 Business and construction disputes, for example, are sometimes resolved by promises of future business or the conferral of some other benefit reflecting a commitment to an ongoing commercial relationship, usually in addition to payments of money. Likewise, the settlement of employment and discrimination cases may include concessions or restoration of positions in addition to or instead of money.
2 Mediators trained in a problem-solving or interest-based bargaining approach to dispute resolution can be the square peg in the round hole of negotiations when the parties expect position-based bargaining (who will pay what to whom).
plaintiff opens with a high demand and the defendant responds with a correspondingly low counteroffer. From their opening positions, the parties engage in a series of counteroffers until they reach a settlement or the negotiation is terminated.
Position-based negotiations are often derailed when lawyers, adjustors, or agents worry about being perceived as weak or ineffective. This can result in parties taking extreme positions and insisting on unilateral concessions from the other side. Oftentimes, the negotiation can become a “war of wills,” leading to frustration, anger, and resentment. Instead of finding ways to create value, the parties choose the familiar path of litigation, knowing the trial will be expensive; its outcome uncertain.
In summary, most civil cases are about money. Money negotiations involve position-based bargaining, a method of negotiating that is loaded with impediments. Five-tool lawyers know how to overcome those impediments. They prepare for settlement negotiations that create value and are prepared to articulate those values through their offers.
Creating value in position-based bargaining will be the focus of the next article.