As a Mediator in Fresno and throughout California, I have seen the best negotiators, providing me a front row seat to some of the best negotiators in town. Not surprising, most attorneys are good negotiators, some are even great, but the best had that something extra, which led me to think. What was it that made them the best? And how could I identify it?
So, I started observing. Over time, I've seen trends from the most sophisticated and effective negotiators out there. And they work. Every. Single. Time.
When trying to quantify what distinguishes the best negotiators I started writing a list of what they did. I culled down the best negotiators’ traits to a few common strategies. They might just help you settle that nightmare case.
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 his client valued, and was home by five that night. I was amazed. No yelling. No idle threats. No underhanded tactics. It made me start thinking, what are they doing?
MY TOP 5 NEGOTIATION TIPS
Follow our top 5 Tips, which will help you maximize your recovery at your next mediation: #5 EVERYTHING IS NEGOTIABLE
We think we know this. We brag about it. But when the mediation is at the crux, remember you can negotiate anything. If you cannot get the other side to budge on the settlement number, then barter on a payment plan, terms, months, interest rate, date of payment, type of payment, who drafts the agreement, etc. Be Creative. Your client will be impressed. #4 DON'T GIVE A BOTTOM LINE
Ever. Many times we think we know what our bottom number is or the top dollar, but we really don't. Even if you believe your client won't go below or up to a number, don't say it. Simply speaking it creates an artificial barrier. Then you are stuck there, and what if your client would settle for a little less.
Only during negotiations, can you really know what is the best number to settle for and announcing the bottom line number steals your flexibility. #3 BE THE GODFATHER
Make them an offer they can't refuse.
Too many attorneys make an offer or demand which is easy to reject. This does not pressure the other side. If you offer a waiver of costs, Plaintiff has nothing to lose. They might as well try the case. If you demand a zillion dollars, why wouldn't the defense proceed? Figure out what the other side might take and come just close enough so they can't refuse. #2 CONCESSION IS NOT A CURSE WORD
All negotiations are concessions. Get over it. The trick is to know what you can and cannot live with beforehand.
Writing out your "concessions" removes the emotional impact. This exercise will put you far ahead of the other side. You will be bargaining from a prepared stance, rather than shooting from the hip with each offer/demand. Write out what you're willing to give up because it has little or no value to you beforehand and be amazed at the confidence you, and your client, will have at the mediation. #1 NEGOTIATE TO EXHAUSTION
The best settlements are negotiated to exhaustion. Only then will your client feel he "didn't leave money on the table" or "didn't pay too much." Keep asking. When the other side says "No more," try other points (this is where listing concessions from numbers 2 & 5 helps). If the other side says no, then you can confidently settle without regret of "leaving" something on the table.
Warning: You need to plant a seed for some of the items you will ask for at the end of a mediation. You cannot spring a material-and-game-changing term at the end of a negotiation, but if you foreshadow the demand early, you might be able to get more in your settlement. I should have a post on this later. Stay Tuned.
[endif]--I cannot over emphasis the No 1 tip. Most attorneys, despite reputations of hard nosed bulldogs, fold before ensuring all the money have been paid or they got the best deal.
Perhaps attorneys fear being told NO because they equate it to finality or they think it is weak if they ask for something, receive a rejection, and do not storm from the room. I am not sure, why. Do not leave money on the table because of ego.
Ask. Then ask again.
If the other side adamantly stops, ask for something else (e.g., confidentiality clause, early payment, payment plan, something, anything). You will be surprised what you can get with patience.
At your next mediation for that case that won't settle, try one of the Top 5 Negotiation Tactics and see what happens.
As a recap, the Top 5 Tips are: 5. Everything is Negotiable 4. Don't Give a Bottom Line 3. Be the Godfather (and make them an offer they can't refuse) 2. Concession is Not a Curse Word 1. Negotiate to Exhaustion You might just settle that case. For example, your client refuses to move on the settlement amount, try #1 Everything is Negotiable and get your client's check payments spread out over time. Make a "concession" list as in Number 2 so you can find out what is valuable to your client and what is not. Maybe you can expedite the check which doesn't bother your client, and it might help save a settlement. I have seen these tactics work, so give them a try and settle that nightmare case.
Action Tip: Negotiating to exhaustion is uncomfortable for many (and I will have a post soon going into depth on the tactic), but try it at your next mediation by listing everything possible you want. When they say NO to one thing, include the other. However, let the mediator know what you are doing because even mediators get tired of doing it. (I don’t however—it is the cornerstone to a successful and satisfactory mediation)
I love negotiating. For a great resource, check out the Harvard School of Negotiation at: https://www.pon.harvard.edu/blog/ Check it out!
YOUR GO-TO MEDIATOR IN FRESNO
I am a mediator in Fresno, California whose practice stretches all around the state of California. I am available for all your mediations throughout Central California.
PEEL | GARCIA
3585 W. Beechwood Ave., Suite 101
Fresno, California 93711
559-431-1300
Thank you,
-Troy
P.S.-Get a FREE printable PDF of our
TOP 5 NEGOTIATION TIPS
(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.
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