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WHY A MEDIATOR CAN HELP YOU NEGOTIATE BETTER

M. Troy Hazelton

Columns Legal

A Fresno Mediator’s Observations On Effective Negotiations Skills and Techniques In A Mediation: Why Attorneys Should Improve Their Mediation Negotiation Skills.

As a mediator in Fresno, California, my practice has provided me a front row seat to some of the best negotiators in the state.

Have you ever had a case against a lawyer who always seems to get what he wants? As a mediator I've seen attorneys who somehow at the end of the day settled for all the terms they wanted, gave up nothing of his client valued, and was home by five that night. I was amazed. No yelling. No idle threats. No underhand tactics. It made me start thinking, what are they doing?

So, I started observing.

Over time, I've seen trends for the most sophisticated and effective negotiators out there. Plus, I've seen other lawyers apply these techniques.

And they work. Every. Single. Time.

The mission of the website and this blog is to help creative, litigating attorneys improve and refine their negotiation skills and techniques to optimize their results in a mediation. Plain and simple.

WHY DO ATTORNEYS NEED TO NEGOTIATE?

I hear this or some variant all the time. Attorneys emphatically declare, “I litigate; I don’t negotiate.”

This is half true.

Litigation attorneys litigate, but they all negotiate. You may be negotiating an extension to serve discovery responses or a discovery dispute. But even more importantly, 95%-97% (depending on who you ask) of civil litigation ends in a Negotiated Settlement, not in a jury verdict.

Even the most experienced civil trial attorneys, only see a jury verdict a few times a year, and only for a small fraction of their other cases. The remaining cases are settled.

 

If 97% of your cases end by way of settlement, don’t you want to put all your efforts and expertise to ensure 97% of your clients obtain the best possible results?

 

To prevail on 97% of your cases, an attorney must be skilled...… Highly Skilled…in negotiating a deal for his or her clients. This can occur in numerous forums:

  • At a Mediation

  • Direct negotiations between counsel

  • At a Mandatory Settlement Conference

Regardless where it settles, it resolves after some negotiation.

HOW DO ATTORNEYS USUALLY NEGOTIATE?

Most attorneys negotiate like they litigate. Some are Bulldogs. Some are Stone-Wallers. Others are Bulldozers.

Some are Bulldog Negotiators: Attack. Attack. Attack. These attorneys yell. Tell the other side they are full of it. Threaten sanctions every time. Try to intimidate. They insult. The scream, “If you don’t settle, I will punish you.”

Some are Stone Wall Negotiators: They don’t negotiate. They have a number and if the other side guesses it and willing to do it, then fine. Otherwise, they refuse to even engage. They usually say something like, “Accept my number or we try the case!”

Others are bulldozer Negotiators: They are a hybrid of the two because the just repeat their insults and bully tactics and will not alter their position. They will repeat, “Accept the number. Accept the number. Accept the number.”

Attorneys pride themselves on being Bulldogs, Stone Wallers, or Bulldozers. A common myth is that these tactics work in litigation, so it must work in negotiations. Although they may. at times, work, you might not be maximizing your settlement.

Sure the case settled, but did these attorneys get everything possible for their client?

When pressed about this, they usually say, “My client got what they wanted.”

But I retort, “Did they? Did you use every tool available to ensure the other side wouldn’t have capitulated to other demands if you used other techniques? Did you maximize your client's recovery?”

Bulldogging, Stone Walling, and Bulldozing are blunt instruments. To get a refined and complete settlement, sometimes you need finer techniques.

WHY DO ATTORNEYS GET NEGOTIATING WRONG?

Most of the time, as attorneys, we confuse litigation and negotiation. We confuse the fighting helmet with the consultant’s cap. We argue. We advocate. We tell the other side they are wrong. We tell the judge the other side is wrong. We tell the jury the other side is wrong. That is litigation.

However, in mediation, telling the other side is wrong is not effective because there is no third party decider of fact. In a mediation, the other party can blow off the Bulldog Negotiator or ignore the Bulldozer Negotiator.

I agree, cases settle all the time with these tactics, and some clients love it. However, such tactics do not get optimized results.

Attorneys also get negotiations wrong because we confuse our roles. We were hired to litigate. To argue and advocate. But attorneys, although not explicitly, are also hired to consult. To advise. To warn. This is best articulated in the different names of lawyers: (1) Attorneys and (2) Counselors. When litigating we are attorneys, but at mediations we are counselors--those who provide counsel to their clients on the risks, the process, the negotiating, etc. When mediating, we need our counselor hats, just as much as litigation helmets, to effectuate a maximum settlement for our clients.

BENEFITS OF EFFECTIVE NEGOTIATION TACTICS

All attorneys settle cases, even with the blunt tactics. However, several benefits come from using the deft techniques of the seasoned negotiator:

  • Maximized recovery because nothing is left on the table;

  • Faster results because the other side is not fighting because they hate you or your client;

  • Control of the process, which shows your client you are in control;

  • Clients are more satisfied when you not only obtain their maximum recovery but also you do so with the least amount of stress to them;

  • Clients are satisfied with the process;

  • Clients see you as an experienced negotiator;

  • Colleagues respect your deft negotiating style and do not try games.

WHAT ARE THE EFFECTIVE NEGOTIATION TACTICS ATTORNEYS SHOULD USE IN MEDIATIONS?

This is the question these articles are designed to address. Please read on and keep a look out for our key negotiation tactics and skills for attorneys in mediations.

Plus, a good article entitled A Winning Formula for Mediation is a a good primer for success at mediation.

WHAT NEXT?

I am a mediator in Fresno, California who mediates throughout California and beyond. I am available for all your mediations. I can help you settle that nightmare case. You can reach me to schedule a mediation at:

PEEL | GARCIA

3585 W. Beechwood Ave., Suite 101

Fresno, California 93711

THazelton@pgllp.com

559-431-1300

--Troy

 

P.S.-Get a FREE printable PDF of the TOP 5 NEGOTIATION TIPS, and join our newsletter to have great negotiating tips delivered to your inbox.

To get it, CLICK HERE.

(throw it in your briefcase to read while that mediator is in the other room and impress him when it's your turn to negotiate)

**This publication is provided as an educational service and is not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.

M. Troy 

Hazelton,

Esq

Mediator

Special Master

Attorney

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