Power Litigation™ Tips and Tactics,
Tips on Negotiating Settlements
Most disputes which lawyers are asked about do not end up in the courts, instead they are settled by way of some form of compromise between the parties - a negotiated agreement. Getting the best settlement for the client can often involve some skilful negotiation. Learning about the skills --- and the ethics --- involved in negotiating is an important part of a working lawyer's education.
Practical Tip # 10.
Watch out for yourself when:
Practical Tip # 3.
The ABA Litigation Section Guidelines on Settlement Negotiations says:
While that may be true, I suggest we have to look at the phrase "satisfactory to those whom a lawyer represents" more closely. The client will not be happy with a settlement if the adverse party does not comply with the settlement or seeks to overturn it. Likewise the client will not be happy if a third party finds the settlement so offensive that it attempts to block or frustrate the settlement. Therefore, there are really five separate characteristics of a proper settlement agreement:
You will note that these five characteristics are in large part the results of fair dealing and mutual respect. As a part of this seminar on negotiations, I want to communicate to you an idea. If you are a good negotiator, you will start with the following premise.
We as lawyers all too often adopt the attitude that the result the client wants is all-important, and we drive to that result by whatever means are at hand. "The end justifies the means" creeps into our actions. No matter how unfair your client wants to be to the other party, you have an obligation to produce a settlement that works. Without certain fundamental principles of fair dealing, business is impossible. If your client, and you, want something that lasts beyond the next sunrise, the settlement agreed upon today must have fairness.
"Fairness" does not mean giving the house away. Because of the situations of both parties, the amount given to one side may be very little compared to what the other side received.
Relationship is almost always a factor in a settlement that lasts. You or your client may think you may never meet the adversary again. But you never know. And the way you handle the negotiations is noticed by the adverse side, who are people that you may have additional significant relationships with in the future. This is particularly true of negotiations with commercial entities or with the government.
There are many unethical negotiation behaviors beside lying. For example, cruel treatment of others, bribes, selling other parties out if they are not present, threats of violence, and unnecessary demeaning of others.
We need to remind ourselves of the following Litigation Section Committee Note in the Guidelines.