Negotiation Strategy: Going to the Balcony

Posted on February 13, 2012 by 907201724028

Take In The View From The Side Line

Lawyers and claims professionals evaluate a case and expect it to settle in a certain range. They also expect the other side will act in a certain way on. When the negotiation does not go as expected, we react. The reaction is instinctive and emotional. Hey, we’re human.

One of your strategies when the other side attacks you or your client or your case evaluation, can be to go to the balcony.

Bill Ury, in Getting Past No, expounded upon this strategy. If you assume the negotiation is taking place on a theater stage, going to the balcony of the theater can give you a broader perspective of what’s really going on. It has the following salutary effects:

It distances you from the fray.
It calms your reactive mind.
It allows you to slow down the negotiation.
It affords you time to name the game the other side is playing and decide how to react logically, as opposed to emotionally.

When negative emotions come up, and they will, take a deep breath. Take a time out, either literally or figuratively. Think it through. As Ury says, “Keep your eye on the prize.”

Be proactive about emotions in negotiation. They always surface—your client’s as well as yours.

We all know the slogan, “Don’t get angry, get even.” In negotiation, it’s not about getting angry or getting even. It’s about getting what your client wants, which is the most value from the negotiation.

Getting More in Your Negotiations

Posted on January 24, 2012 by 907201724028

Getting More by Stuart Diamond

I just read a fabulous new book by Stuart Diamond, negotiation expert and professor at The Wharton Business School, called: Getting More. If you want to get more out of your negotiations, get Getting More today!

Professor Diamond outlines, and then explains, 12 negotiation strategies. His rationales are likely to make “hard” bargainers second-guess strategies that may (or may not) have worked for them in the past. At a minimum, adding these strategies to your skill set will broaden your negotiation worldview.

To give you a flavor of Professor Diamond’s thinking, here are the strategies in summary form:

Goals are paramount.
It’s about them.
Make emotional payments.
Every situation is different.
Incremental is best.
Trade things you value unequally.
Find their standards.
Be transparent and constructive, not manipulative.
Always communicate, state the obvious, frame the vision.
Find the real problem and make it an opportunity.
Embrace differences.
Prepare—make a list and practice with it.

Diamond uses a simple comparison to recommend his strategies: “It’s the difference between saying ‘I play football’ and ‘I play professional football.’”

If you want to negotiate like a pro, buy the book. Read the book. Improve your negotiated outcomes. And, be sure to let me know how it worked for you!

Don’t Go Into Mediation Cold: Settlement Requires A Game Plan

Posted on October 3, 2011 by 907201724028

It’s Football Season: Break Out The “X’s” and “O’s” And Prepare

Ninety-eight percent of all lawsuits do not go to trial. The vast majority of those are settled.

It’s time to get more pro-active with your retained counsel to prepare adequately for settlement.

As a lawyer trying cases, I would spend at least a week in 12 hour/day trial prep mode for a three-week trial. Then I’d work between 14 and 16 hours a day during trial. (OK, maybe only 10 hours on Sundays.)

Preparing for mediation? Not so much. I’m not sure what it is about lawyers who gravitate toward litigation, but it seems as if we think we already know how to negotiate. (Unfortunately, I’ve suffered from that same hubris myself.)

I regularly give seminars to lawyers about mediation and negotiation and ask how many of them took a formal negotiation class in law school. The average, over a wide pool in many different states, is less than 15%.

Leigh Thompson, a professor at the Kellogg business school at Northwestern, says, “Excellent negotiators do not rely on intuition; rather, they are deliberate planners.”

A week or so before your next mediation or settlement conference, ask your counsel what his/her plan is for the negotiation. Expect a long pause, or an answer like, “My plan is to start really low and go up r e a l l y, r e a l l y slowly.”

Tell your counsel you want to pay them to be thorough and think creatively about the settlement negotiations. Ask them to send you their mediation game plan. It should include a plan of disclosures and a plan of concessions. You might not stick to it religiously, and of course you will modify it as circumstances dictate, but it will be a guide and it will significantly reduce reactivity and negative emotions which can get in the way of settling those cases you don’t want to try webbanki.ru.

2 Approaches To Early Resolution And Cost Savings For Litigation Guidelines

Posted on September 19, 2011 by 907201724028

Let’s State The Obvious: Early Mediation Can Lead to Lower Costs of Defense

Most insurance and claims adjusting companies have Defense Counsel Guidelines. I’ve seen many of them. It’s hard to remember, though, seeing one in which a contingency plan for early settlement was addressed.

Most guidelines I’ve seen are focused on having a case evaluated for settlement at 6 months. By that time, your defense counsel will have interviewed the client, propounded initial discovery, received and reviewed the medical records and taken the plaintiff(s)’ deposition(s).

Perhaps you could reduce your ALAE significantly by including early mediation in your guidelines. (Transparency caveat: I’m a mediator and I have a bias. I mediate cases nationwide.)

2 Ways To Include Mediation In Attorney Guidelines

Here are two suggestions. One is fast-tracking that process to 3 months. The second is requiring your lawyer to approach plaintiff’s counsel about mediation within the first 6 months.

Fast tracking settlement. In three months, it’s unlikely you’ll be able to get all of the medical records and receive responses to discovery and take the plaintiff’s deposition. Ask yourself, though, if you really need all of that information to settle the case. In some cases, particularly cases of clear liability, the answer is: probably not. Yes, you may settle some cases for a little more than having all of the usual discovery would suggest. On the other hand, plaintiff’s counsel may be willing to take less money in return for not having to work the case up. You will also be saving attorneys’ fees and litigation costs and closing files.
Mediation date within 6 months. There seems to be an institutional bias against the defense being the first side to suggest a mediation. The underlying fear is that plaintiff or her counsel will conclude your case is weak and their settlement aspirations will zoom skyward and their bargaining posture will harden. Do you have any data to support that bias? I haven’t seen any. Try it out, then calculate your overall savings.

I applaud all sides when they come to me to mediate a case either pre-suit or very early on in the litigation. I try to set the expectation that the exploration of settlement at an early stage is an opportunity for both sides to be realistic, not only about the value of the case, but also about saving litigation costs.

3 Settlement Techniques That Will Help Move A Case To Resolution

Posted on May 25, 2010 by Marc Lanzkowsky

Is your claim at an impasse?

There really are better ways to help resolve the dispute

As a claims professional, you know you have cases that will ultimately settle, and can settle, but for some reason or another you just can’t get there. Recently I came across a great blog dedicated to providing different ideas and solutions surrounding the settlement process. Settlement Perspectives, written by John DeGroote, provides insights and “thoughts on how to resolve disputes and get your deal done.”

In a recent article posted on their blog, Lawsuit Settlement: 7 Ways to Get There Faster, Better and Cheaper — The Presentation, John DeGroote gave a few different approaches to help move those difficult cases to settlement. I am sure many of you out there have used one or all of these techniques in trying to get by an impasse, and there are certainly many more techniques that can be employed, regardless the list is a great starting point.

Of the seven suggestions, I like the following three the best:

Managing Expectations – In his article, Managing Expectations: An Unexpected Lesson on the Bus to Hertz, John gives a great example of his expectations being managed about how long it would take to get to the rental car lot after getting on the airport shuttle bus. Having had his expectation managed, it allowed him to foresee an outcome different than he had anticipated. Settlements are the same, and managing both the clients, as well as those of the opposing party’s, expectations is a great way to help avoid an impasse. Settlements are always a compromise and before entering discussions setting out expectations may avoid problems later.
Decision Tree Analysis – If you have never worked with a decision tree I strongly recommend you try it. The process itself can be extensively debated, however, as another tool it’s is worth a try. The essential component to the “tree” is trying to place an empirical approach to evaluating and settling a claim. Decisions are raised, values are assigned and an outcome is determined.Once completed, a decision tree is a tool that can be shown to an opposing party to explain the basis for a position being taken. Many will argue the values and measures that you placed on the various “decision” points, but it is a technique that can remove the emotional aspect of a negotiation and demonstrate an objective approach to a decision. You can learn more about using this approach in Decision Tree Analysis in Litigation: The Basics.
Offers of Judgment – Federal Rule 68, and similar state statutes, imposes a penalty on a party who refuses a reasonable settlement offer. Using this tool is a great way to help move an opposing party to take a long hard look at their case. In Rule 68 and Offers of Judgment, Part I: How They Work and Why You Should Care, John gives another great overview of how these rules can assist in moving a case at impasse. We have all had a case where you know what it’s worth, and know it should be settled, but you just can’t get the opposing party to move. Using an offer of judgment is a way to require the plaintiff to at least respond or suffer various penalties.

Keep being creative to help lower claims expenses

As I previously wrote in Improve bottom-line outcomes on claims by thinking outside-the-box!, being creative is a great way to improve claims handling and lower costs. Trying some of the suggestions above are innovative ways to help resolve claims earlier and lower costs.

The Claims SPOT

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