When formal litigation becomes too difficult to navigate through or seemingly is becoming a lose-lose for all parties involved, the prospect of negotiation being the right avenue for resolving the dispute creeps back into the fold. A negotiation can potentially relieve some of the stresses caused by being in the courtroom, but that is not to say that a negotiation is a walk in the park. Good negotiators will prepare just as thoroughly for a negotiation as they would for formal litigation. One aspect of that preparation, like in any battle, is learning everything you can about your opponent.
Researching and studying opposing counsel can make all the difference in your, as the attorney, and your client’s end result. Learning opposing counsel’s strategies, tendencies and habits in a negotiation can make all the difference in the outcome. Does opposing counsel like to push back vigorously from the start or does he or she stay calm and observe before pushing the envelope. Does opposing counsel handle matters in this practice area often or are they going to be learning some things as the proceedings continue. It is vital to learn everything about the negotiation, including your opposing counsel, or you will be doing a disservice to yourself as well as your client.
Obviously every negotiation will be different in that they are driven by the facts and the position taken by each party, but tendencies will arise on the part of the negotiator. A seasoned negotiator will try to replicate strategies that have worked in the past, it is important to observe the strategy and make a conscious effort to counter said strategy in an attempt to maintain or regain the stronger position.
Getting opposing counsel to stray from their comfort zone and stay on their toes could make the difference in how well the negotiation results are for your client. Ultimately, that is the aspect of the negotiation that should never be forgotten, what does your client want as a result and what do you need to do to ensure the client is happy with the result.
It is also important to always consider opposing counsel’s facts and point of view throughout the negotiation process. Try to evaluate the facts in a way that the adversary would use to emphasis their client’s perspective. Then make sure to have a response that will swing the fact back in your client’s favor; making sure to place yourself in the shoes of the adversary will help build a strong strategy. The ability to contemplate all possible viewpoints of a situation is one that is developed over a period of time. An attorney needs to work on the skill of thinking outside the box when considering facts; thinking not only of how the fact influences your client, but also how opposing counsel will emphasis the same fact in a way that benefits their client.
Finally, it is important to take time and think about what opposing counsel is asking of you during the negotiation process. Based on what or how something is said, it is possible to deduce what their strategy or arguments will be during the negotiation. Piecing together the facts of the situation with what opposing counsel is asking for could give an idea of what opposing counsel will argue. Do not disregard what opposing counsel is asking, a lot of positive can come from just thinking about what and why they are asking for certain information. Being able to know opposing counsel’s arguments before negotiation will allow you to come up with ways to attack the adversary’s arguments and obtain the best possible result for your client.
The Gohari Legal Group represents clients in real estate, bankruptcy, corporate, family, litigation, estate planning and immigration matters in the state of Maryland. We are headquartered in Bethesda, Maryland and serve clients in Frederick, Montgomery and Prince George’s Counties. We are a small firm that allows us to give clients the personal attention they need. We bring our decades of experience in the practice of law to serve our clients in a speedy and cost-efficient manner.