Be strong, be prepared, and don't blink

The Examiner

Editor’s note: This is a favorite column from 2016.

One of the many tasks that lawyers perform on behalf of their clients is negotiation.

We negotiate many types of issues such as the amount of money to be paid to settle civil claims and lawsuits; the terms of an agreement for the sale of assets, such as real estate, a business or a portion of its interest; the terms of a settlement agreement in a family law matter, such as division of property and custody and co-parenting; and plea negotiations in regard to criminal charges.

Ken Garten

When it comes to the art of negotiation, I have many thoughts that have evolved through my experience.

First is, one must always consider the consequence of not reaching an agreement, as a guide to how to approach the negotiation process.

In a negotiation for the acquisition, sale or buyout of a business interest or real estate, each side should be guided by what happens if we can’t reach an agreement. He who is least desperate to make the deal, or can make himself appear least desperate, usually has the upper hand.

In a litigation context, be it a claim for money damages, a child custody dispute, or a criminal charge, the alternative to reaching a settlement agreement is usually having a trial, and letting a judge or jury decide the issue.

Both sides have a right to go to trial, and it is that precious right that both sides agree to relinquish when a settlement is negotiated.

So, having a strong case – and the willingness, fortitude, confidence and resources to proceed to trial – definitely gives one an advantage in settlement negotiations, in that someone in that position is not going to be adversely influenced in negotiations about the consequences of not reaching an agreement.

Conversely, when one party exudes, either overtly or impliedly, that they are afraid of or not prepared to go to trial, or they just really, really, really want to settle, then the upper hand in negotiations definitely goes against them.

Put another way, the key to success in diplomacy is having a strong army, I have been fond of saying.

Perhaps one of my greatest weaknesses in the negotiation of litigation matters is that I find negotiations to be very distracting as an overlay to trial preparation. I don’t like to do trial preparation and settlement negotiation at the same time.

My style and inclination is to offer what I am willing to do by way of settlement at an early stage, without a lot of wiggle room, and with the idea that the other side can take it or leave it, it’s up to them. And if that is not acceptable, then let’s get on with getting ready for our day in court, because there is always a lot to do, and I don’t like doing both at the same time, negotiate and prepare for trial.

Plus, I have found that if you take the approach that we are singularly focusing on getting our case ready for trial, and we are finished with settlement negotiations, then that approach is most likely to elicit the best settlement offers late in the game. And I always love it when the other side blinks, because then I know that they are less prepared to go to trial than I am, and the upper hand is mine.

And if that offer never comes – sometimes it does and sometimes it does not – at least you’re ready to go when the judge calls your case for trial.            

Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com.