A judge once told me that a successful settlement occurs when the plaintiff thinks he did not get enough and the defendant that he gave away too much. This viewpoint envisions both sides leaving negotiation with a measure of defeat. Some years ago when I was a trial lawyer, we were on the verge of choosing a jury when the judge called for a settlement conference, ordering both sides to come to his chambers with authority to settle. He asked us to write a number on a slip of paper and hand it to him. I wrote down the lowest amount I could accept and my opponent the highest number his client would pay. The judge picked up one slip, then the other, and smiled. Holding out both slips, he showed us that they had the same number. Sounds like a happy ending, right? But the case was not over yet because once my opponent realized that I would take his number, he tried to get out of it. It was not acceptable to pay any amount that would satisfy us, even though moments before he and his client would have happily settled at that figure.
Although the aim of negotiation is to arrive at an agreement, many approach it as a win/lose proposition. The language people use to describe negotiations is often black and white. It’s either “I left money on the table” or “I gave away the store.” That is usually the case when the only currency considered is money.
But, what would happen if the parties really explored what is important to them? I thought about this when the United Airlines fiasco hit the news. A doctor was forcibly removed from a plane to make room for United Airlines employees. According to the Washington Post, witnesses said the doctor was pulled from his seat screaming. The CEO issued a public apology, “I continue to be disturbed by what happened,” United chief executive Oscar Munoz said in a statement. “I deeply apologize to the customer forcibly removed and to all the customers aboard. No one should ever be mistreated this way.”
While I don’t know, my guess is that attorneys representing the airline groaned when they heard the CEO apologize because it is much harder to defend a case after a statement like that. Absent intense public scrutiny, outrage and falling stock prices, it probably would not have been done. When I was representing injured clients, I asked in the first meeting what they wanted to get out of the case. Often, the first thing they mentioned was the wish to receive an apology. I viewed that as an impossible outcome because, generally, cases end with a release expressly stating that the defendant does not acknowledge or admit fault.
At the Harvard Kennedy School, executive leadership programs include a robust section on win-win negotiation where I first heard about Mary Parker Follett, whose story of two highly competitive sisters quarrelling over a single orange conveys the possibilities of win-win negotiating. Both sisters wanted the entire fruit and neither would budge. Their mother decided that the only way to resolve this dispute was to divide the orange and give each sister half. The first sister then squeezed her half to make fresh orange juice while the second sister grated the peel to get zest for orange scones. Neither was interested in what the other desired and both could have enjoyed every bit of the entire fruit.
A different outcome could have been achieved if the sisters, rather than digging in their heels, had approached settlement with an eye toward satisfying the other person. This is true in lawsuits, politics and marriage as well. Better results come with consideration of the other side’s point of view and an orientation toward wanting their success as long as it doesn’t interfere with yours. In nearly three decades of practicing law, I saw every style, make, model and version of the counselor at law and, to a person, the best I’ve known were also impeccable in their treatment of other people, including opposing counsel. They were respected and feared in the courtroom for their tenacious preparation, not because they swung proverbial bats. Generosity is not a sign of weakness. It is a sign of strength.
Advocating for the best result for your client need not be inconsistent with considering what the other side needs. You may be able to get what you want by giving them something they want and without sacrificing anything important. Don’t withhold just because you cannot give someone else the satisfaction of a win. That would defeat the purpose.
The aim of win-win negotiation is to find a solution acceptable to both parties, with each feeling they’ve won—exactly the opposite of what the judge told me—how each side should feel they gave up too much. To get there, you must find out as much as possible about the needs and interests of the other side while seeking fair compromises. A successful win-win negotiation leaves little or no value on the table with all creative options having been thoroughly explored. While not everything can be negotiated, the philosophy of win-win is that more things can be negotiated than most people think.
In retrospect, I could have explored the possibility of an apology instead of presuming it was beyond reach because once that was off the table, my clients focused exclusively on the money and usually wanted more than the case could possibly yield.
Win-win anticipates that each side will get more than they would with traditional bargaining because they are considering their opponent and looking for ways to achieve the best result for all. It takes preparation, time and is not intended to produce a sub-par result.
Here are tips for achieving a win-win settlement:
- Do not personalize the problem. How your clients feel about each other is irrelevant and many lawyers make the mistake of aligning too much with their clients’ feelings about the other side rather than factors capable of leading to resolution. Align yourself instead with the desired outcome, not emotions that could drive a stalemate.
- Adopt an orientation that negotiations are not about who has the best case, but about how everyone can gain.
- Spend negotiating time exploring needs and interests, rather than defending your position. Adversaries tend to take a firm stance and stick to it. They concentrate on “what we want.” In a principled negotiation process, the focus is on interests behind the position and a range of issues at stake. Paying attention to interests helps uncover the “why” behind a stance.
- Investigate and invent options for mutual gain. This is a chance to do creative lawyering. The impact of a win-win agreement lies in creating a bigger pie by exploring ways to expand the available options.
- Consider making multiple offers, equally advantageous to you, at the same time. Your opponent’s reactions may provide insight into needs and preferences. If all are rejected, ask which one is the best to glean any meaning that might reveal.
- Speak less, listen more.
- If you cannot discuss the case without devolving into argument, consider hiring a neutral mediator with no emotional attachment to any specific outcome.
There is a plethora of resources on win-win negotiation if you are interested in trying a new approach. The process permits you to consider the other side rather than condemning it, which can be a better position from which to forge an agreement. You may also find it intellectually challenging and more enjoyable than traditional negotiations as it will bring more of your skills to the process.
Reprinted with permission from the April 27,, 2017 edition of “The Legal Intelligencer” © 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.
