The three most often overlooked preconditions to a really successful settlement. Negotiation tactics advice to settle your lawsuits - better!
Let's think about some basic ideas and tools for the negotiation and settlement of lawsuits. The basics come first. There are three items you need before you can enter a settlement conference room and leave with a really successful settlement. Those preconditions are:
TRIAL NOTEBOOK. Many trial lawyers use a trial notebook in the process of developing the case. Yet few bring their trial notebook to mediation. They should. You should. Mediation lends itself to persuasive advocacy. Throughout the process you will be persuading the other side of the value of the case. And you should be persuading the other side that you are ready for trial. Not by telling them so. Show them --- by bringing a trial notebook to the mediation that shows your organization by its mere presence.
First things first! You should be using a litigation notebook system. If you have a trial notebook, such as the LitigationReady!© system, that notebook should be brought with you to any settlement conference or mediation. Bringing the reality of your excellent preparation to the mediation impresses your adversary and is helpful to the mediator when she in private conference with your adversary wants to say that your side is confident about the probable outcome of a trial.
CLIENT COMMITMENT TO YOUR VALUE RANGE. Next, you need to be able to state what the case is about in a few words and get your client's commitment to settlement in the range you feel the case is realistically worth. If you want a form method of doing that, effectively and quickly, you will want the training and information available in our case summary before negotiation format.
"Effective negotiation and mediation call for advocacy skills and advocacy - style presentations.
Losing lawyers don't do a really persuasive presentation before reaching the settlement table.
Wining attorneys do the softening up of the other side that is needed before you ever put a dollar figure on the table."
PSYCHOLOGICALLY DESIGNED - PACKAGED - WRITTEN - OPENING OFFER. You need to have prepared the opening offer to contain certain information, and you need to deliver that offer before you step into the settlement conference room. Your opening offer with the critical information that causes settlements has to go to three places: (1) the opposing attorney; (2) the opposing party or claims manager; and (3) the mediator. Most attorneys only consider the need for the opening offer to go to the other attorney. That is a mistake. You should have your opening offer packaged in a substantial format so that the opposing attorney feels compelled to send a copy to her client.
Furthermore, before you get to any mediation you need to have prepared certain information and given it to the mediator. You want to have a mediator that is psychosocially and factually prepared to present your side strongly to the opposing party during his/her one-on-one sessions with the opposing party.
Whatever standard format you start with in building your opening offer to the adversary, you must --- must --- remember to have a psychologically designed offer, and have it in writing. It's not how many pages you send to the other side. It is the way you parcel and present the information in phased bursts built into one information package.
It does not matter which side of the counsel table you are on! Your opening offer must be written, short, memorable, and building successfully page by page to produce the effect you want on the (1) mind and (2) emotions of (A) the adversary attorney and (B) his/her decision maker person.
In your opening offer, you have to meet not only the need of the adverse attorney to have the facts to support a recommendation to settle in your favor, but also to drive the emotions of the adverse attorney and the adverse party to want to settle in your favor! You can do all of that only in a proper written offer, delivered in advance of face-to-face negotiations.