5.3 Planning for Position Bargaining
In the light of the foregoing discussion, consider how the strategic thinker would plan his litigation for a negotiated settlement.9 5.3.1 Step One: Information Exchange
The first step is to determine what style and strategy are most likely to produce the most information without revealing your own.
Is it best to be friendly, creating a cooperative competition for information? Or is it better to be aggressively adversarial, and control and test information? Your thinking on this issue will help you plan whether and how to select the forum, conduct ice breaking, assert agenda control, employ appropriate questioning strategies, and prepare blocks that will help maximize an information exchange that will provide access to how the opposing side values their case, the opposing side’s weaknesses, and any emotional or psychological factors that may effect case valuation. 5.3.2 Step Two: Response To Opening OfferThe negotiator needs to be careful not to “leak” too much information non-verbally when the opponent makes an offer. If he unintentionally reveals interest and acceptance, just like in a game of poker, he tips off the other side to what cards that they hold. 5.3.3 Step Three: Opening Offer
Prepare an opening offer that balances your credibility as a speaker with your position bargaining strategy of testing the other side’s view of their and your case. 5.3.4 Step Four: Persuasive Statements in Support of Your Positions
Prepare a detailed, multifaceted, appropriately passionate presentation in support of your offer. Make it detailed, multifaceted, provide that it build, one argument on top of another, and prepare to deliver it with the right emotional fervor. 5.3.5 Step Five: Plan Your Concessions
Prepare ahead of time the timing, size, and decision factors that will give rise to concessions. Key is to prepare the size of the concession, because it can send signals as to where you have set the bottom line.
Make sure to accompany each concession with a reason for your concession. Don’t concede twice without your opponent conceding in between unless you initiate a second concession with a prior condition on the part of your opponent. 5.3.6 Step Six: Test Your Opponents’ Bottom LineKnow the ethical parameters of persuasion in the context of negotiations. Much has been written about the ethical issues concerning the discussion in negotiation of the client’s bottom line.10 Recognize that if you ask your opponent, “Do you have authority to move off your last position?” you are putting them in a professional and tactical dilemma. If the opponent has room to move, and says no, he risks deadlock, and is in a conflict with the authority his client has given him. On the other hand, giving up client confidences about the client’s communications to the lawyer about his bottom line is unethical.
5.3.6.1 Ethical Parameters
Some have argued that negotiators are free to lie if they are asked about their client’s willingness to settle. Model Rule 3.4 and Comment 2 to Model Rule 4.1 seem to indicate as much. Take a look closely at Model Rules 3.4 and 4.1, and Comment 2 to 4.1.
MR 3.4 Fairness to Opposing Party and Counsel
A Lawyer shall not: falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.
MR 4.1 Truthfulness in Statements To Others
In the course of representing a client a lawyer shall not knowingly
a) make a false statement of material fact or law to a third person: or
b) fail fail to disclose a material fact to a person when disclosure is necessary to avoid assisting in a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Comment 2. Statements of Fact
[2] … Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under the generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact.
Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement or a claim are in this category, …If you ask about your opponents’ bottom line, or if they ask you about yours, you’ve created or are facing a dilemma. If you say you do not have authority to move, you may lock your self in at the expense of settlement. Consider each of the following options.
Based on what you have told me so far, I can’t recommend that my client move off the earlier position.
You first! Can you move any more off of your earlier position?
I’ve been given broad discretion by my client, but I’m not willing to move, base on what I’ve learned so far.
Others try to manipulate the client’s bottom line during a negotiation. They may counsel their client to give them only limited authority during the early stages of negotiation, so that they can use their client to slow down the bargaining process and get client input as more is learned about the other side’s position. 5.3.7 Prepare for Deadlock
One of the problems with deadlock is that you must take the steps to prepare for trial, knowing that there might be other grounds of fruitful discussion that may lead to the resolution of the dispute. You should plan how to deal will deadlock. Will you walk out? Will you stay and bargaining hypothetically? Will you brainstorm with your opponent for creative ways to deal with the deadlock, taking the opportunity presented by the deadlock to bargain like problem solvers? 5.3.8 Wrap Up
Prepare to restate the terms of the agreement to be clear you have a deal on each issue that is important to your client. 5.3.9 Write Up
Plan ahead of time for who you will write up the deal. Save some emotional energy for the write up. Parties can add or try to subtract from what has been agreed to during the write up stage. Be careful here to not have celebrated too early, leaving yourself no reservoir of energy in case there are still problems with the deal.