Ronald K. Stitch
Attorney Mediator

Phone: 818-707-0202
Email: Ronald Stitch

 

Below please find excerpts from “Your Winning Edge-The Lawsuit Game and It’s Alternatives”
©2006 by Ronald K Stitch.  I hope you find this information useful.

 

CHAPTER TWO - KEEPING CONTROL

NEGOTIATION & MEDIATION

 

NEGOTIATION

Negotiation is the process of conferring, discussing and/or bargaining to reach an agreement.  In my opinion, it is the best way to resolve a dispute. Most importantly, it is the best way to obtain the desired results.  To put negotiation in perspective, the by-products of other dispute resolution methods need to be examined:

·        At least some control of resolution of the problem will be given up;

·         The result becomes more uncertain;

·         Third parties become involved which will add complexity to the dispute;

·        When a third party becomes involved, that party's skill at  mediating, arbitrating, or litigating the dispute  will be relied on;

·        When involving third parties in the process, their needs and interests will play a role in your dispute;

·        The monetary cost of resolving the dispute will probably increase;

·        As hard as confronting the opponent may be, the emotional costs when

      involving a third party may increase; and,

·    The resolution of the dispute may drag on.

      Considering these factors, you will be more likely to get the desired results by negotiation.
                  Of course, effective negotiation is the key.  Generally, negotiation may:

·     Take less time than the other methods.

·      Cost less money.

·      Have a lower emotional cost.

·      Give the best chance of obtaining the desired results.

Like some of the other methods of resolving disputes, negotiation is:

·        Private

·        Allows creativity

·        Allows opportunities to preserve the relationship between the parties to the dispute.
 

EFFECTIVE NEGOTIATING

The most important factor in becoming an effective negotiator is to:
             recognize that you have the  power to negotiate disputes.  To be effective, you should:

·         Prepare for the negotiation by gathering facts and information about the
                       issues and the other person or company being dealt with.
  An attorney or expert who has experience negotiating in a certain field may be consulted with to obtain information that can be used in the negotiation.

·          Consider what process of negotiation will be the most effective toward getting the best result:

A.  Will it be a meeting or meetings?

B.  Will it be a series of letters going back and forth?

C.  Will it be a series of phone calls?

D.  Will it be a combination of these processes?

·          Read books about negotiation.   Some prominent negotiation books are listed in the
                        bibliography.

·          Talk about the problem with a friend or trusted colleague.  Ask how he would approach the
                        problem.

·          Talk to a lawyer or mediator about techniques that could be used to help bring you and your
                        adversary closer together.

·          Learn as much as possible about the opponent’s circumstances.  What is motivating him? 
                        What are the interests behind his stated position(s)?

·          Consider all the options.  What are the ramifications of each option? Is ignoring or avoiding
                        the problem a possibility?  Are there other ways to simply avoid the dispute all together? 
                        Is legal action a viable alternative?

·          Talk to your opponent about joint resolution of the mutual problem that exists between the two
                        of you.  Explain that even if he doesn’t see that there is a problem, a problem exists because
                        your relationship with him is at stake.  Or, a problem exists because each of you will end up
                        devoting time and energy to the problem if a satisfactory result cannot be negotiated and you
                        are “forced” to proceed with a more intrusive dispute resolution method or legal action.

·        Have faith in your ability to achieve a favorable outcome.  Draw on past      experiences. Go for the best result that can be achieved.

 Learn and use these “tried and true” negotiating techniques:

·        Ask questions - note what is not said by your opponent and observe his body language.  Also, use questions to make your opponent invest time and energy into you.

·        Stall - if there is something to gain by waiting

·        Bluff - don't let the other side know your upset or happy

·        Act dumb - let your opponent help you with filling in the details by asking questions

·        Use silence - use not speaking to your advantage.  The other side may speak or your silence may cause the other side to think the worst.

·        Negotiate on the telephone when you initiate the call - this gives you the advantage.

·        Separate people from the problem - be polite to the person and hard on the problem you are negotiating about.

·        Try and get the other side to make the first offer - that way you can find out his thinking and position first.  Also, he may offer you a deal better than you expected.

·        Find out the other side's time deadline - and, even if you have a deadline, never let on you are acting under pressure.

 

HIRING A PROFESSIONAL NEGOTIATOR

If you decide not to negotiate alone and want to hire a negotiator to help with the dispute, consider the following:

The dynamics of the negotiation will become more complex.  It will no longer be only the negotiating parties who will influence or even decide the outcome of the negotiation.  Both parties' negotiators will have an impact on the outcome.    

  Involving professional negotiators may prove to be an expedient way to resolve your dispute.  Experienced negotiators can help the parties clarify the decisions which need to be made to reach an agreement.  However, any negotiator may hinder or hurt the chances to bring the negotiation to a successful close as well.

Never give up decision making power regarding the whole dispute or the points that really matter.  If this power is given up, you may end up with a decision that you are not really happy with.  You may also be legally bound to the decision that has been reached by someone else.  For example, a lawyer generally has the power to make binding decisions for his client. 

Giving up power to make decisions takes away an advantage of hiring a third party negotiator in the first place.  Utilizing a third-party allows the opportunity to take a break in the negotiations for consultations between negotiators and the parties.  The negotiator and the party may brainstorm about the best way to handle the pending negotiations.  Also, the negotiator can get as much as he can while not giving anything up until it is approved by you.  To maintain control over the negotiator and the negotiation: 

·                    Make it clear up front that that it is very important to be kept informed about the progress or lack of progress in the negotiation.

·                    Instruct the negotiator whether or not to provide written reports and/or phone calls about the progress of the negotiation.

·                    Advise him of the points or items that require prior authorization and the concessions that may be made without being consulted.

·                    Make sure the negotiator is accessible.   You don't need someone who won’t return your phone calls.  

·                    Make sure the fee arrangement with the negotiator is clear.

·                    Make sure you are satisfied you will be getting the most for your money.

·                    Solicit the negotiator’s honest assessment of your dispute.  Some useful information may be obtained.  You may also decide that your views are a lot different from the prospective negotiator’s views and decide to hire someone else.

·                    Ask the negotiator about his personal feelings or views about the dispute.  See if you agree with his views or not.  Keep in mind that the negotiator’s personal feelings and perspective about the problem will influence, in some way, the result of the negotiation.

·                    Consider the negotiator’s advice but don’t accept it blindly.  Make sure the rationale behind the advice is understood.  If the advice stems from the previous experience of the negotiator, ask what specific experience(s) the negotiator has had in cases like yours.

            A NOTE ABOUT LAW, LAWYERS AND NEGOTIATION

            Essentially, law is power if one has a dispute with another party or wants to prevent problems in the future.  It may be used to force a party to pay money or do something.  It may also be used as a tool to enforce a negotiator's agreement if it falls apart.  Yet, law should only be one of several factors that should be considered when negotiating a dispute.

 

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