Alternatives To Trial:
When Settling Your Dispute Makes Better Sense
“Avoid lawsuits beyond all things; they impair your health, and dissipate your property…”
— J. de La Bruyere
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser in fees, expenses and waste of time…”
— Abraham Lincoln
“The [legal fees] are outrageous. With the cost of litigation these days, I think clients would often be better off if they just met in the halls and threw dice. Certainly it would be cheaper.”
— Walter McLaughlin, Chief Justice, Supreme Court of Massachusetts
This chapter will equip you to:
- Understand the different ways of winning your case short of the courtroom
- Use ADR (Alternative Dispute Resolution) to your advantage
- Know and understand the Ten Commandments of Settlement
- Negotiate and come out on top
Now you’ve read this book and you’re ready and equipped to take your case all the way to trial and litigate the facts and the law before a judge or jury and win your damage award. So what are the actual chances you will have your day in court? Not good according to Bergman and Berman-Barrett. “Informal estimates are that around 90 percent of cases filed wind up being settled [out of court] rather than resolved by the verdict of a judge or jury. … Not only did just 10 percent of all the cases in the New Jersey sample [of a recent study by the Jonathan Hyman conducted for the New Jersey Administrative Office of the Courts] go to trial, but 12 percent of those cases were settled after a trial started.” 
The American Arbitration Association adds “National statistics indicate that 85 percent of commercial matters and 95 percent of personal injury matters end in written settlement agreements.”  Indeed, according to the National Center for State Courts, fifteen million civil cases were filed in 2000. The Administrative Office of the U.S. Courts estimates that 95 percent of those cases were settled prior to trial.
So, even as you file a lawsuit or answer a claim someone else is making against you, it helps to be mindful that the vast majority of cases can and actually are worked out by the parties before trial.
There are several good reasons that most cases never get as far as the courtroom. In addition to daunting attorney’s fees and assorted case related costs, hot-tempers often tend to mellow over time. Where the fire of anger may have been enough to sustain a case through its early phases, as the case draws closer to the day of trial, the less indignant a litigant is likely to feel, and the more amenable he may be to an agreement. Also, during discovery phase information often comes up that can cast the dispute in a new light make an out-of-court settlement more agreeable. Finally, as trial approaches the risk of losing a case becomes more real. The litigants come to the realization that just because they feel strongly about the “righteous” of their cause may not prevail.
There are basically two main avenues of settlement open to litigants before and during trial to resolve the dispute before a judge or jury renders a decision. One side may approach the other with an offer of settlement to resolve some or all of the issues of a dispute, which typically opens a period of negotiation often resulting in an agreed upon outcome. A second, increasingly common approach – alternative dispute resolution – involves some form of mediation or arbitration, a process that essentially empowers a neutral third-party to hear and decide the issues of a case. A third evolving method is an arbitration with a high-low agreement that the parties privately reach (the arbitrator does not know about the high-low agreement).
What Is Alternative Dispute Resolution
Overloaded court dockets are not a new phenomenon in America’s judicial marketplace. True, the volume of cases filed by an increasingly litigious culture grow larger every year, exacting an ever-heavier burden on an already strained court system, but in a free society disputes are not that uncommon and rather than restrict access to increase responsiveness, Americans have generally preferred to grow the judiciary to meet the need.
Access to our legal system where we can have our grievances redressed by a jury of our peers is the greatly prized “jewel of our democracy” and Americans have generally resisted efforts to tamper with this core framework of liberty.
Most judges and lawyers date alternative dispute resolution (ADR) to the early 1900’s with the advent of the American Arbitration Association and other institutional forms of arbitration. However, arbitration dates to early Biblical times with one of the first noted arbitrators King Solomon. Even earlier, arbitration was used as a method to resolve tribal and nation territorial disputes. In England arbitration was a common means of commercial dispute resolution predating the common law as early as the 1200’s.
George Washington, the nation’s first president, had an arbitration clause in his will requiring any dispute regarding an interpretation of the will to be decided by a panel of three arbitrators. His will stated that the decision was as final and binding as any decision of the Supreme Court.
Perhaps the most common form of dispute resolution, arbitration, was used to resolve labor disputes. This form of dispute resolution was codified by acts of congress and many state legislatures and today is incorporated into most labor collective bargaining agreements. Almost every commercial contract contains an arbitration provision. Also, many form contracts produced by industry specialty groups such as boards of realtors contain arbitration or mediation provisions.
Mediation has also been applied to assist individuals and countries resolve disputes for thousands of years. Through many seasons its use diminished and then later became common place.
Remarkably, neither form of dispute resolution was recognized in any consistent definitional form. It was not until the second half of the 20th Century when the legal community began to focus on trial court delay, that the different forms of dispute resolution began to be defined in commonly accepted ways. The acronym ADR did not become commonly used until the 1980s.
These days, settling a dispute out of court can be accomplished in any of several different ways: negotiation, conciliation, mediation and arbitration. Taken together these techniques come under the umbrella of alternative dispute resolution or ADR.
Today, all fifty states have enacted the Uniform Arbitration Act which accommodate ADR .
Impact of Trial Court Delay
Trial court delay did not begin overnight, but crept into state courts over several decades – beginning in the 1960s and reaching crisis proportion in the 1980s. In many metropolitan courts it was normal for parties to wait 4 and 5 years for a trial. The American Bar Association, the Conference of Chief Judges and the National Center for State Courts responded to the crisis of delay with commissions such as –
1. ABA Commission on Standards of Judicial Administration, Standards Relating to Trial Courts ( 1975)
2. National Conference of State Trial Judges, Court Delay Reduction Standards (1985)
3. Lawyers Conference Task Force of Litigation Cost and Delay, Defeating Delay: Developing and Implementing a Court Delay Reduction Program (1986)
These commissions and many others, after study and broad input, recommended many reforms. Chief among the reforms was the insertion of ADR into case management systems and processes.
Caseflow Management in Trial Courts
As the reforms began to be studied and implemented, experience was gained and some principles evolved. The center piece of the caseflow management principles became measurement. So it was said that a complete caseflow management information system should provide at least the following –
1. Measures of activity
2. Measures of inventory
3. Measures of delay
4. Measures of case scheduling accuracy
5. Evaluation measures; and
6. Individual case progress information.
As trial courts began to measure the key components affecting delay they discovered that a certain percentage of cases were resolved at each step in the process. Steps in the process varied from court to court but usually contained the following –
1. Discovery cut off
2. Settlement conference
ADR in the Trial Courts
Gradually, the court and the organized bar realized that an additional step requiring ADR would further increase the case resolutions before trial – and so the caseflow process took a different look
1. Discovery cut off
3. Settlement conference
Many trial courts began to experiment with different forms of ADR and from those early experiments definitions and standards evolved (and are still evolving in some courts).Two of the most successful court ADR programs took different approaches yet have had a very significant impact not only on court based ADR activities but also non-court based ADR activities. First, the Multi-Door Dispute Resolution Division of the Superior Court of the District of Columbia
Washington, DC and second, MACRO the Mediation and Conflict Resolution Office of the Courts of Maryland .
Multi-Door Dispute Resolution Division of the Superior Court of Washington D.C. was the result of an experimental program motivated in part by the American Bar Association and the National Center for State Courts in 1985.Today, the Multi-Door Dispute Resolution Division maintains a staff of 22 full-time employees to administer its recruitment and training programs, intake and referral program, small claims mediation program, family and community mediation program, child protection mediation program, landlord and tenant mediation program, probate mediation program, tax assessment mediation program and civil mediation, arbitration and case evaluation programs. Most actual mediations and arbitrations are done by 300 independent, court certified neutrals, who are paid by the court. The Division provided a neutral forum for dispute settlement in more than 6,100 matters in 2005
MACRO, a product of the Maryland ADR Commission of 1998 is a court-related agency, which serves as an alternative dispute resolution (ADR) resource for the state. MACRO supports innovative dispute resolution programs, and promotes the appropriate use of ADR in every field. MACRO works collaboratively with many others across the state to support efforts to advance effective conflict resolution practices in Maryland’s courts, communities, schools, state and local government agencies, criminal and juvenile justice programs and businesses.
Types of ADR
Arbitration means a process in which (1) the parties appear before one or more impartial neutrals / arbitrators and present evidence and argument supporting their respective positions, and (2) the neutrals / arbitrators render a decision in the form of an award that is binding. The parties may agree that the decision is not binding.
Mediation means a process in which the parties work with one or more impartial neutrals / mediators who, without providing legal advice, assist the parties in reaching their own voluntary agreement for the resolution of the dispute or issues in the dispute.
Settlement Conference Facilitation
Both parties meet with an impartial Neutral, who will facilitate discussions between both parties to help the opposing parties reach a mutually acceptable agreement. The neutral will evaluate the strengths and weaknesses of each party’s case and help the parties analyze the risks associated with a trial. Sometimes, at the request of the parties, the neutral will offer an opinion regarding a likely verdict.
Neutral Case Evaluation
Neutral Case Evaluation means a process in which the parties and their attorneys present in summary fashion, evidence and arguments supporting their respective positions to a neutral. The neutral person renders an evaluation of their positions and an opinion as to the likely outcome of the dispute or issues in the dispute if the action is tried before a jury.
Rules of ADR
Most court rules contain provisions concerning the timing and compulsory requirements of ADR. All court rules and even some statutes mandate that the ADR activity be confidential to the parties and the neutral. Thus the court can never be privy to what the parties said or what their demand or offers were.
Compulsory or Voluntary
Some courts mandate that all parties participate in an ADR activity before a trial date is set – while others allow the parties to volunteer for a court sponsored ADR program. Most courts that mandate ADR allow the parties to petition the court to be relieved of the obligation upon a showing of good cause. The courts maintain a list of qualified neutrals and in most cases require the neutral to meet certain specified minimum qualifications.
Largely because the courts began to mandate ADR, a requirement that neutrals be certified evolved. Most courts maintain a list of qualified neutrals in various specialties i.e. family law, medical malpractice, and personal injury, complex civil and commercial litigation. If an individual desires to be placed on a court list of neutrals, most courts require the neutral to demonstrate their experience and successfully complete a 40 hour course on the principles of mediation. Certification requirements and procedures vary widely from state to state and even county to county and in many instances they are largely discretionary with the court although minimum standards are usually established in state wide court rules of procedure.
Bricks and Mortar
In the Internet age, paper based activities are generally referred to as “bricks – and – mortar”. Beginning in the mid 1990s arbitration and mediation began to increase dramatically. There are not any good sources which reliability report the national, state or regional number of ADR activities. It would be difficult to tabulate such numbers in part because of the confidential nature of ADR. Some national organizations, such as the American Arbitration Association do report their total activities – however, they are only a small piece of the total ADR pie.
The dramatic increase of ADR is perhaps best demonstrated by the formation of many professional groups and associations. The American Bar Association formed the Section of Alternative Dispute Resolution in1993 and with 17,000 current members it is one of the fastest growing sections. Most state bar associations and many local bar associations have formed similar sections and committees. Most organizations have By-Law provisions similar to those of the Maryland State Bar Associations Section of Alternative Dispute Resolution which provides –
To act to improve the administration of justice and the use of alternative dispute resolution processes throughout Maryland by study, research, reports and recommendations to the Governor of Maryland, the Maryland Legislature, the Court of Appeals of Maryland or to any other public official, legislative body, judiciary or judge, or any other governmental or public agency or body, and also the Association.
The American Bar Association, The Association of Conflict Resolution and the American Arbitration Association promulgated Model Standards of conduct for mediators.
Following the lead of the organized bar state rules committees have provided standards for alternative dispute resolution and requirements for certification and training.
Most all federal agencies and each branch of the armed services have formal alternative dispute resolution programs.
The Internet – Moving into the 21st Century
The ability of technology- especially the internet – to make many business processes more efficient is now making it clear that online dispute resolution is the next frontier of alternative dispute resolution. Courts have not yet adopted any form of Internet ADR. The internet promises to make more disputes reachable by ADR and to facilitate the resolution of disputes faster and at a lower cost. But like many shifts from paper to technology, a clear strategic pathway has yet to appear.
What is Online Dispute Resolution
Online Dispute Resolution provides the ability for two (or more) disparate parties to settle their dispute using the Internet. Sometimes this involves lawyers and mediators and sometimes it does not. It depends on the vehicle/provider that the parties agree to utilize to resolve their claim.
History of Online Dispute Resolution
The concept of on-line dispute resolution (ODR) has been discussed in academic circles since the mid 1990’s . Professor Ethan Katish was a leading researcher and developer of concepts of ODR. From 1997-1999, Professor Katish mediated a variety of disputes online, involving domain name/trademark issues, other intellectual property conflicts, disputes with Internet Service Providers, and others. In the spring of 1999, he supervised a project with the online auction site eBay, in which over 150 disputes were mediated during a two week period. During the summer of 1999, he co-founded Disputes.org, which later worked with eResolution to become one of four providers accredited by ICANN to resolve domain name disputes. He is also an adviser to SquareTrade.com, an Internet start-up focusing on online ADR. There are over 20 internet companies listed on the ODR.info site which provide ODR online services.
How Can ODR Help ADR?
Online dispute resolution (ODR) promises to enable alternative dispute resolution (ADR) to become more efficient, faster and less expensive. By achieving those three improvements ODR will make ADR a real alternative to a greater number of disputes thereby bringing all of the advantages of ADR to a greater number of people. An examination of the ADR process and barriers to ADR will allow a deeper examination of the potential of ODR.
The Benefits Of ADR
There are obviously many advantages to bypassing the courts and settling a matter prior to trial. A few pitfalls too – which this chapter will help you prepare for – but since settlement talks can break out at any time up to and throughout the day of trial, you, as the well-prepared would be litigant, should be fully versed and ready should they erupt out of nowhere in your dispute.
As innovative as our system of justice is, it simply doesn’t work well for every dispute. For some conflicts that may require nothing more than the opinion of a neutral third party, the court system can be a rather inefficient, heavy-handed arbiter, more of an instrument of blunt force where a tool of more precision would work better.
All this has overtaxed our legal system, stretching and contorting it and forcing it into every social nook and crevice in a desperate bid to smother every dispute, from landmark civil rights issues all the way down to mild disagreements and differences-of-opinion. The results have left the system frayed, expensive, and fraught with delays and confusion, while we – the frustrated citizens that system was designed to serve – are left feeling both intimidated and disillusioned by the inner workings of American justice.
Alternative dispute techniques allow disagreeing parties to find a new forum to resolve their differences while preserving access to the courts. Sometimes it helps to see the realm of conflict resolution in terms of degrees marked along a spectrum. At one end of the spectrum, there would be no conflicts of any sort and society would live and work together in perfect harmony. At the other end of the extreme the courts would impose solutions upon the parties in conflict, like what our system is today. ADR then, occupies every degree in between these two extremes.
So, in addition to the benefit of a non-trial forum, what are some of the other advantages ADR offers disputants?
Time: Time for one. As America becomes an ever more litigious culture, increasing numbers of civil and criminal cases compete for a cut of the justice system pie. Extensions, delays, motions, appeals, all these and much more work together to extend docket lengths by months and even years in many jurisdictions.
ADR can bypass those delays and get to a solution in much less time. The American Arbitration Association reports that most mediated disputes take just a few weeks to resolve and most arbitration claims are decided within a few months of filing. Additionally, dispute resolution can be sped up in circumstances where there is a compelling “need for speed.” Most courts are frustratingly unable to accelerate time-is-of-the-essence claims.
Choice of Methods, Neutrals: You and your opponent can often choose your method of resolution and any third-party neutrals you want to preside over the dispute. Sometimes, as in the case of contract mandated or court-ordered arbitration the range of choices can narrow somewhat, but there still is usually far more decisive input from the disputants with ADR than in most courtrooms.
This flexibility becomes a huge benefit in situations that allow you, for example, to select an expert from your industry to help decide your dispute. Judges by definition are impartial neutrals, but they usually are not expert neutrals, which may be critical to obtaining a fair solution to your dispute.
In most arbitration settings, the impartial neutrals are selected with input from the parties. In some cases the parties may appoint representatives to a panel which then selects the neutral[s] decision-maker, or as in the case of the American Arbitration Association and other ADR facilitators, the parties may choose neutrals or delete the names of neutrals from a panel of registered field experts.
Minimizing Associated Costs: ADR can reduce or eliminate nearly all the costs associated with taking a case to trial including, lawyer’s fees, court costs, lost time and wages and other less-tangible costs associated with the emotional toll and hassle of litigation.
Mediation and arbitration fees can range from about $200 to $600 for small and medium-sized disputes like personal injury, property damage and negligence claims, and landlord-tenant and individual contract disputes.
Business contract and damage award disputes can be much more expensive to mediate-arbitrate. Nolo reports that business parties in a multi-million dollar contract dispute that takes four eight-hour days to iron out will probably shell out around $8,000.
In divorce mediation cases where the couple has a house and cars and bank accounts to divide up and child support and custody questions to clear up, parties can expect to pay about $1,200 each.
Many organizations exist to facilitate alternative dispute techniques and are less interested in making a buck than they are in working out an agreement. If your dispute is not too complicated you can probably find an organization to help mediate your claims for a nominal charge.
Private and Confidential: One major benefit of ADR is that hearings and meetings and proceedings and decisions are usually always kept private and confidential. This can keep the terms of any agreement behind closed doors and away from prying eyes and can facilitate total candor among the parties and help reach the common ground necessary to settlement.
Conclusion and Finality: ADR brings closure to disputes that can drag out for months or even years and most settlements result in binding agreements – particularly with arbitrated settlements — that carry the weight of legally enforceable contracts between the parties.
Pitfalls of ADR: Alongside the benefits of ADR, there are also some serious pitfalls to watch out for. Any of the benefits mentioned above can become a liability in the wrong set of circumstances. The decisions of non-binding arbitration and mediation, for example, are often much less final than parties might like. Really, they amount to agreements that may or may not be enforceable.
The choice of neutrals, as another example, carries the flipside possibility that you may not be able to find out much about your decision-maker before the day of the hearing, and neutrals are generally much-less accountable than judges who are public officials and subject to ethics rules and laws that govern their profession.
The confidentiality and privacy of ADR can have its dark underside too, as when you want others to know of the behavior of your opponent. Settled disputes often require parties to stay hush-hush as to the outcome. Also, there are no records or transcripts of ADR proceedings that can be used by you for any potential appeal, which brings us to perhaps the chief difficulty of ADR.
An arbitrated decision may carry a very limited or even no rights to appeal. Courts are taking an increasingly strong view of the merits of arbitration, enforcing decisions whether the parties necessarily agree with them or not.
Steven K. Ludwig describes that trend in an article outlining the growing practice among employers to require binding arbitration for all statutory conflicts as a condition of employment.
Ludwig notes the United States Supreme Court ruling that upheld a decision in Gilmer v. Interstate/Johnson Lane Corp., (500 U.S. 20, 1991) in which the court held that there was no absolute right of access to the courts by a plaintiff pursuing an age-discrimination action against an employer, if the employer has a solid arbitration agreement with its employees.
Ludwig adds, “The court found that an agreement to arbitrate was governed by the Federal Arbitration Act which provides that ‘a written provision in any … contract … to settle by arbitration a controversy thereafter arising out of such contract … shall be valid, irrevocable, and enforceable.’ The court also noted that it had regularly held that federal statutory claims can be the subject of enforceable arbitration agreements” .
You should weigh each of these benefits against the possible pitfalls to help determine if ADR is for you.
Preparing Your Strategies For Settlement
By now it should be obvious that a case you’ve spent hours properly preparing to win in court can quickly become a loser at the negotiating/settlement table. You need to isolate a winning strategy well in advance of any actual settlement talks or hearings, especially when your opponent has a lawyer on the payroll whose single-minded interest will be wresting the best terms for his client without respect for the merits of your case or your entitlements.
Author Henry G. Miller spells out his Ten Commandments of settlement in The Art of Advocacy: Settlement: 
- Thou shalt not spurn settlement as being beneath thee,
- Thou shalt respect thy enemy,
- Thou shalt treat thy client as thou wouldst be treated,
- Thou shalt not bargain as if thou were born yesterday,
- Thou shalt not evaluate each case as if it were the last one in your office,
- Thou shalt know the law,
- Thou shalt seek the counsel of elders and experts,
- Thou shalt keep abreast of modern ways,
- Thou shalt not be a hero,
- Thou shalt think settlement.
As we’ve already discussed, settlement and alternative resolution methods can be helpful and are often the best choice in terms of cost and timeliness, but there are times when it a litigant would be better served foregoing the draw and playing out the hand he was dealt. Unfortunately, many pro se litigants don’t realize until after the fact that they would’ve done better in court with their case than they did with the settlement agreement or arbitration decision.
How can you know that the resolution offer on the table is really the best resolution for you? Do your homework up front, that’s how. Only when you know the relative strengths and weaknesses of your case compared to your opponent’s, only after you’ve measured your exposure to loss against what you stand to gain if you press on with the action – and not until you know these things – will you be ready to make informed decisions about alternatives to court.
There are three critical areas in which you should ensure that you understand completely before your settlement meeting.
- A)Know your own case: Know the facts of your case and the law, know the damages that the law entitles you to and refresh yourself with the thematic and persuasive heart of your case, the central core of your opening and closing arguments. Pay particular attention to:
- Which facts are in dispute between you and your opponent?
- What facts, rights or duties were clearly defined in prior agreements or contracts?
- What elements of evidence in your case are critical to its success and which ones are secondary?
- Where are the weaknesses in your claim?
- What are the damages you have incurred as a result of the defendant’s actions and what is the full amount that the law entitles you?
- Prepare until you feel confident that you know the issues and law of your case better than your opponent (or your opponent’s lawyer) does.
- B) Know your opponent’s case: Several thousand years ago Chinese strategist Sun Tzu said, “By discovering the enemy’s dispositions and remaining invisible ourselves, we can keep our forces concentrated, while the enemy’s must be divided. … Though the enemy be stronger in numbers, we may prevent him from fighting. Scheme so as to discover his plans and the likelihood of their success.”
Knowing your opponent’s case will equip to see the dispute from his perspective and allow you to make informed guesses about his motives and means. Consider these questions as you peek at the other team’s playbook:
- What facts would you say are critical to you opponent’s case?
- What evidence do you know or suspect your opponent can and will present to establish those facts?
- What would you say are your opponent’s objectives in pressing for alternative case resolution?
- How strong – on a scale from one to ten – is your opponent’s case?
- C) Become very familiar with the process of negotiation, mediation or arbitration: Sometimes the best answer to a proposed settlement is ‘no.’ Make sure you know how to say that word, particularly before an arbitration hearing, which will probably be the final say in your dispute. Additionally, consider these questions:
- What are the alternatives to the settlement action you and your opponent are considering?
- How expensive would a trial be in terms of court costs and fees and lost wages, recovery fees for enforcing the judgment and any other miscellaneous fees that could or will present themselves?
- What are the intangible costs, those for lost time and frustration, and other encountered difficulties?
- How confident are you – on a scale from one to ten – that you will prevail in court with your action?
- Would your case fare better before a judge or a jury? (Is it emotionally compelling or is it based more on technical legal issues?)
You will want to keep these questions in the forefront of your mind as you prepare your settlement offers. Draft two separate offers on two separate sheets of paper. The first will be your initial negotiating offer and will consist of the full amount of everything to which you are legally entitled. This is your starting place for your settlement negotiations, the highball figure from which you expect to make concessions.
Don’t hold back anything on this initial offer – actual damages, lost wages, lost future income, any potential punitive damages if you realistically believe a judge or jury might award them – as long as they are authentic possibilities if the case had proceeded to trial. Obviously, if you are the defendant in an action you will want this document to reflect the smallest judgment a jury or judge might award, perhaps even no monetary damages at all.
Former Secretary of State Henry Kissinger was well-versed in the art of negotiation. “Effectiveness at the conference table depends upon overstating one’s demands,” he said.
The second offer is equally important. It is for your information only and should not be shared with your opponent. This document should outline what your lowest acceptable terms would be after all the negotiations are over and the last offer is on the table. This are the lowest terms you can live with and you should be ready to walk away from the any counter-offer that doesn’t meet them.
In this way settlement negotiations are less like high-stakes poker and more like the game of spades – you want your opponent to pay for every trick he takes off the table while ensuring that you always make at least your minimum bid.
Keep these five principles firmly in mind throughout the negotiation process to help you secure an honestly won, mutually beneficial settlement that will bring closure to the dispute for you and your opponent:
Prepare For Trial, Not Just For Settlement. It can be tempting to try and play the odds that your case will settle before trial. Maybe you can shortcut your pre-trial work and shoot instead to have just enough ready for settlement negotiations. This is a big mistake. Do this and you’ll be under-prepared and likely rolled over at the negotiating table.
You can be sure that your opponent (or his lawyer) will be ready for your settlement meeting with evidence showing that he was not negligent, is not responsible for your losses, and that you contributed to your own suffering.
Don’t Be In A Rush To Settle. Hastiness and a rush to settle can literally lay waste to your claim. Finish gathering all the law and facts that are material to the dispute, and carefully work through your damages before you even mention a starting figure in earshot of your opponent.
Remember, there is an order and tempo to the art of negotiation and once an offer is broached, it can’t be easily taken back. Certainly, you can rescind an offer if your opponent refuses it or makes unacceptable counter demands or in light of new information, but if an offer is broached, your opponent has the right to expect that you will stand behind those terms especially if he says “yes” to your offer.
Don’t Be A Phony. Don’t go back and try for a second bite of the apple. Once an agreement has been reached, live up to its terms. Don’t try to renegotiate elements of an agreement after you suddenly realize your unhappiness with them. Your opponent will quickly lose patience with you and will likely move forward with some action to legally enforce the agreement. A written settlement agreement has the legal weight of a contract. Or, he may agree to just scrap the agreement and press on at full speed ahead with trial.
Remember that credibility is the raw currency of relationships and nothing will blow up your credibility faster than agreeing to terms only to try and revise them later to your favor. Be a person of your word.
Watch Your Mouth. Even idle conversation about your dispute can do damage to your chances of reaching a beneficial settlement if information is surrendered that jeopardizes your position of strength.
It could be any nugget of otherwise innocuous background data that suddenly revises the value of your damages downward, or calls into question the testimony of your critical witness, or reveals your contributing role in causing the damages. Back in World War II days they used to say “loose lips sink ships” and so it is with your dispute as well.
Be Bold. Don’t be afraid to walk away from an offer. If your opponent has no real interest in a mutually beneficial agreement, take him to court. That’s why the justice system exists.
Think about it…
When a resolution is reached between you and your opponent, get it down in writing before you each go your own way. Even well intentioned litigants tend to muddle details as time passes of time and unless the terms of an agreement are in writing the settlement will likely come undone if one side or the other disagrees with what was decided at a prior meeting. A written agreement is viewed by the law the same as any other contract and can be used to enforce compliance in court. If one party disputes the terms of a settlement the judge will ignore what was orally agreed to in favor of what was written down. This will usually not become an issue if the dispute has been resolved through mediation or arbitration since alternative dispute neutrals will most likely insist that a “release” or “stipulation of dismissal” be signed by both parties, but if you and your opponent or his lawyer reach an agreement outside of court, stop and get the terms down and signed immediately.
Psychology Of Negotiating Settlements
First things first. Step back, take a deep breath and forget for a moment about winning. So much of what you have already read in this chapter and throughout this book has been oriented toward equipping you with the advice, understanding and techniques you need to go into court to win your case and defeat your opponent. The courtroom is by nature an adversarial arena where opposing parties come together to undertake controlled conflict. Litigants grapple with one another using language and argument to persuade the judge or jury in their favor.
Negotiations don’t have to be that way. They don’t have to end with a winner and loser. The parties themselves can work out an agreed upon settlement, mutually beneficial and giving each side the opportunity to win. In fact, the best negotiated settlements are those that allow both sides to win – or at least come away with a better deal than what a judge or jury would’ve imposed – otherwise, settling out-of-court would have hardly any more benefit than a decision forced upon the parties by a judge or binding arbiter.
Try to enlist the help of your opponent to build an agreement that exceeds both parties’ set of expectations. Where concessions are necessary, try to offset them with inducements. Where you require damages be repaid or reparations made, offset their sting with the promise that the relationship can resume in good standing, or the commitment that good business can result from an agreement. Be creative, announce your intentions early on that you are committed to finding ways you both can win.
This doesn’t mean that you are going soft and giving up shrewd tactics, only that you agree that a mutually beneficial settlement is preferable to a decision imposed from on high.
In their book Getting To Yes: Negotiating Agreement Without Giving In,  three directors of the Harvard Law School Negotiation Project offer several interesting insights on the practice of effective negotiation and the mistake that many would be negotiators make early on.
“When negotiators bargain over positions they tend to lock themselves into those positions. The more you clarify your position and defend it against attack the more committed you become to it. … As more attention is paid to positions, less attention is devoted to meeting the underlying concerns of the parties. Agreements become less likely.”
The solution, authors Fisher, Patton and Ury offer, is simple: stop negotiating your position against your opponent and start negotiating the “merits” of the problem itself. View your opponents as fellow problem solvers and not as opponents.
Try and “separate the people from the problem,” Fisher, Patton and Ury write. This powerful technique can dismantle the emotionally exhausting and energy-sapping dynamic of assigning blame. With the blame game out of the way, you and the other party can get down to solving the problems rather than locking yourselves into some cross-table blood sport contest that won’t end until one of you is defeated.
This will certainly involve maintaining some emotional distance on your part to be effective. You can’t very well use this technique if you are caught up in the “heat of battle,” responding in kind to every stab and thrust of your opponent. Mostly, this will require you to keep your head, even when the person sitting across the table from you is losing his.
Additionally, you’ll need to discover the underlying motives and interests behind the positions you and your opponent – or rather your problem-solving partner – have staked out and are trying to defend. This is what allows you to negotiate on the merits of the core dispute. By knowing and understanding as much as you can about your needs and interests in the case (as well as your opponent’s) you are free to explore other meaningful possibilities that you would likely never have an opportunity to pursue if you were holed up, defending some entrenched emplacement. You also then have the capacity to know which alternatives, inducements or concessions may facilitate agreement.
Motives and interests are different from the positions we often employ to defend them. A parent may defend her position on an 11 p.m. curfew by saying that her son is too young to stay out later and that it’s a school night and his grades have slipped on the last two report cards. These are her positions. Her actual motivations and interests may more closely involve fear of what might happen to a teenager being out past 11 and a desire to go to bed herself at a reasonable hour without having to toss and turn because her son isn’t home. In this example the boy would be wise to see through his mother’s fear and offer a compromise, maybe his mother would bend on the curfew if he was right next-door at his neighbor’s house watching the end of a movie or perhaps he and his friend could hang out at his house to meet his parent’s concern.
The trick is to see through the position to the underlying motivating interest.
Another key element of effective negotiation is to know the minimum you can accept and the maximum with which you will open. Know the limits of your operating “envelope,” but be flexible. “Negotiators who arrive with a complete package can create real problems,” writes negotiator Stephen P. Cohen. “Modifications to their ideas might be taken personally, they may be stubborn, and reaching a satisfactory resolution is made more difficult.”
Many professional negotiators including Cohen and Harvard authors Fisher, Patton and Ury believe that no would-be negotiator should even attend a settlement meeting without what they call a BATNA (Best Alternative To a Negotiated Agreement). Your BATNA empowers you to walk away from any negotiation that does not meet your minimum needs while equipping you to explore all the possibilities which might emerge should the negotiations fail to reach an agreement. The more detailed and thorough your BATNA, the more empowering it will be.
Basically, your BATNA is a detailed document beginning with the question: “What will we do with this dispute, if these negotiations are not successful?” This document is designed to get you thinking about all the possibilities that exist beyond the formal agreement that may be less than obvious.
Keep in mind that your talks should be as problem-oriented and non-confrontational as possible. Remember you are problem-solving partners. If tempers flare or accusations start flying, resist the urge to respond in kind. Try becoming silent. A prolonged silence in the face of your opponent’s rants can be a powerful tool to convey disapproval. Additionally, your silence demonstrates confidence and an internal assuredness that – if nothing else – may well shame the other party into a more amenable attitude.
Here are several specific things you might say to attempt to draw the focus away from the persons involved and redirect it upon the problems:
- “Please correct me if I’m wrong.”
- “We appreciate what you’ve done for us.”
- “Our concern is fairness.”
- “We’d like to settle this based on some objective standards – not on who can do what to whom.”
- “Could I ask a few questions to see if my facts are right?”
- “What’s the principle behind your position?”
- “Let me see if I understand what you are saying…”
- “Can I get back to you on this?”
- “Let me show you where I’m having trouble following your reasoning.”
- “One fair solution might be …”
Two final points. As you work through the issues at the negotiating table, watch the concessions – yours’ and the other party’s – and examine them carefully for patterns and hidden meanings. Don’t make large concessions, even if your negotiations started miles above where you expect to finish. Large concessions both undermine the credibility of the initial offer and suggest strongly that additional concessions will be forthcoming. Small concessions on the other hand suggest the bargaining limits are close at hand. Look for large concessions by your opponent, but only make small concessions from your side.
Lastly, remember to keep your eye on the prize, don’t be coerced or shamed into agreeing to a deal that doesn’t meet your minimum requirements. Sometimes, it’s easy to get close to a final agreement, when both sides sense that a deal is near, and then the other side asks you to just “split the difference” on the last remaining points so you can wrap this thing up and go home.
Splitting the difference can take what is otherwise an acceptable proposal and turn it into a dud if you aren’t careful. Work through the last items just as you did the first, measuring them all the while against your minimum acceptable terms and your best alternative to a negotiated agreement. If the last points tip the scales in the wrong direction, have the courage to walk away.
Negotiating With Your Opponent’s Lawyer
Keep in mind that if your opponent has a lawyer you will likely face additional pressures to resolve the case before trial. If your opponent’s case is weak, his lawyer will probably try to negotiate an agreement directly with you in the belief that he can “take you” in negotiations and win a better resolution for his client than they would’ve earned in court or in arbitration.
If he has a strong case, he might well try to exaggerate it still further in an effort to push what he considers his inferior opponent (you!) toward an agreement that is way over the top of what the courts would likely render.
The point is your opponent’s lawyer will try to take advantage of the fact that you are a pro se litigant whether his case is strong or weak. Don’t let him. Prepare yourself and refuse to be pushed around by your opponent’s lawyer. So what if he underestimates your abilities. Let him, then use his misperceptions against him. Have confidence and show no weakness.
Finding An Arbitrator Or Mediator To Resolve Your Dispute
The first step is determining whether alternative dispute resolution applies to your dispute or not. Some contract disputes require parties to attempt mediation or arbitration before any litigation can proceed so you should arm yourself in advance with the tools and information you need to succeed in this arena as thoroughly as you have prepared for trial in court.
For a Web-based venue for resolving individual and corporate disputes, visit VirtualCourthouse™ In addition to conflict mediation and arbitration services, VirtualCourthouse™ offers a range of additional consulting services including Neutral Case Evaluation which can help you assess the merits and shortcomings of your particular case. Our expert neutrals will offer an opinion as to the likely outcome of the dispute or issues of the dispute if the case were tried before a jury.
The American Arbitration Association can help answer questions and point you in the right direction to resolve your dispute through arbitration or mediation. They can be reached at 335 Madison Avenue, Floor 10, New York, New York 10017-4605. Phone: 212-716-5800, Fax: 212-716-5905, 800-778-7879 Customer Service.
The Association for Conflict Resolution is an amalgam of three formerly separate entities; the Academy of Family Mediators, the Conflict Resolution Education Network and the Society of Professionals In Dispute Resolution. The association can be reached at 1015 18th Street, NW, Suite 1150, Washington, DC 20036. Phone: 202-464-9700, Fax: 202-464-9720, Web site at www.acresolution.org
Mediate.com bills itself as the “most visited conflict resolution site in the world.” Many available articles and research papers freely available make this an informative site. They can be reached at PO Box 51090, Eugene, Oregon, 97405. Phone: 541-345-1629.
The Northern Virginia Mediation Service is a non-profit affiliate of George Mason University and has an informative brochure available outlining conflict resolution through mediation and their services available. The brochure is called: In A Conflict? Try Mediation and is available from the NVMS at their Web site or by writing to: 4260 Chain Bridge Rd., Ste. A-2, Fairfax, VA. 22030-4297. Phone: 703-993-3656, Web site at: www.nvmediation.org
 “Represent Yourself In Court: How to Prepare and Try A Winning Case, Paul Bergman, Sarah Berman-Barrett,” Nolo Press, 1998.
 The Battle Is Joined: Cram-Down Arbitration Under Attack, Steven K. Ludwig, Fox, Rothschild, O’Brien & Frankel, LLP.
 The Art Of Advocacy: Settlement, Henry G. Miller, 1983, Bender,
 Getting to Yes: Negotiating Agreement Without Giving In, Roger Fisher, Bruce Patton, William Ury, Houghton Mifflin