I’ve settled thousands of lawsuits and claims for injured clients for more than 25 years. This is not because I don’t like trials. In fact, I find trials to be a full-charged adrenaline rush and some of my biggest paydays came from jury damage awards. However, trials are costly and risky. And not all cases or clients, for that matter, are a sure thing at trial. I find most of my clients just want to be treated fairly. They have lost something. They need to be paid money as compensation to improve their current situation, a situation brought on because of someone else’s fault. And if they are fairly compensated in a settlement, they are happy to avoid the stress, time, and expense of trial. This is what drives settlements in lawsuits: high costs and uncertainty.
In their book Getting to Yes, the authors, Roger Fisher and William Ury, explain that researchers at the Harvard Negotiation Project have concluded that principled negotiation is much more effective than positional bargaining. What does this mean?
Positional bargaining is when parties stake out their positions and argue to defend them. This style of negotiation causes the parties to become further entrenched in their positions. There are psychological reasons why people become more attached to a belief when their belief is questioned or under attack. Essentially, our egos become tied to the positions we stake out and, in defense of our positions, we create more reasons why we are right and the other side is wrong. You can imagine that if both sides are defending their positions during a negotiation, then they are likely to move further apart when bargaining about their respective positions.
Principled negotiation flips the script. Rather than staking out a position and defending it, the parties look for common ground through an understanding of each other’s interests. There are four steps to the method:
- Separate the people from the problem
- Focus on the interests, not positions
- Invent options for mutual gain
- Insist on using objective criteria
A simple example of the benefits of principled negotiation is as follows: Two men who are arguing over who is the true owner of a bushel of oranges. If they stake out positions, they will argue beliefs related to ownership. Who owns the tree on which the fruit grew? Who picked the fruit? What tree did the fruit really come from? Eventually, the oranges are split 50/50 between the men. One squeezes the oranges for juice and throws away the skins. The other skins the oranges for the citrus oil and throws away the fruit. Had they explored one another’s interests in ownership of the oranges, they both could have had 100% of what they wanted.
I strongly suggest if you plan to mediate or negotiate the settlement of a lawsuit, read Getting to Yes. The authors provide strategies for nearly every negotiation situation. The application of principled negotiation will greatly increase the likelihood of a successful settlement. And if you need to resolve your personal injury claim, hire a lawyer skilled not only in litigation and trial, but also skilled in principled negotiation.
As the authors conclude, “No one can make you skillful but yourself.” That’s especially true for lawyers.