The State Bar Association of North Dakota Spring 2015 Gavel Magazine | Page 14

BY
WICK
CORWIN

Thoughts

ON
NEGOTIATING
From 1976 through
2008, Wick Corwin
was a member of
the Fargo law firm
Conmy Feste Ltd. His
practice was limited
to civil litigation,
but it was unusually
broad and varied.
On a fairly even
basis, he represented
both plaintiffs and
defendants.
In November 2008,
Corwin was elected
to serve as a district
judge in the East
Central Judicial
District. His term
ended in 2014.
Corwin currently
provides ADR services
throughout North
Dakota and west
central Minnesota. His
primary focus is the
mediation of monetary
damage claims.
Reach him at www.
corwinmediation.com.

14

THE GAVEL

Most civil actions have one thing in common. The
requested relief is monetary compensation. It
follows that the resolution of such disputes should
be a relatively simple process – negotiations based
on mutually realistic assessments of the merits,
that lead the parties to some middle ground all
find to be acceptable. Reality, however, is usually
something very different.
The comments that follow are based largely on
my personal experience and impressions regarding
the process of negotiation, primarily in the form
of mediation. In general, I have found mediations
tend to be frustrating, tedious and surprisingly
emotional. Most cases do settle, but this often
occurs long after the parties are sorely tempted
to quit. The reasons run deep and are resistant to
change. At the same time, it may be possible to
avoid some of the common mistakes or human
tendencies that make the process more difficult
than necessary. That is my motivation for writing
this article.
Although some form of negotiating is an
inherent part of most things lawyers do, it is
largely neglected in the training we receive. Even
mediation training tends to focus on the process,
rather than the dynamics of the positional
bargaining that drives the resolution of a dispute
about money. The same is true of most that has
been written on the subject. A notable exception
is a small volume entitled “Making Money Talk,”
written by J. Anderson Little. It is available online
through the ABA. If you have it within you to
read just a single book on the subject of negotiating
monetary disputes, this is the one I recommend.
It is the source of many of the suggestions outlined
here.

Think About Where To Start
All negotiations start with a number. What that
number should be – and the message it conveys – are
the logical place to start. It is a given the parties will
start with a number that leaves room for the hard
bargaining certain to follow. One common problem,
however, is that the initial demands and/or offers are
extreme, far beyond what even a biased assessment of
the claim can support. In turn, this often negatively
impacts the process.
Parties are motivated to negotiate by a desire to
settle, but they are easily discouraged. They are
also mindful of the tactical risks associated with
the disclosure of their true settlement positions.
Anything that appears to lower the prospects for
resolution has a very chilling effect on the opposing
party’s willingness to meaningfully negotiate.
Few things have more chilling effect than a starting
number that is not in the ballpark.
An excessive starting demand may well be perceived
by a defendant as an indication the plaintiff ’s
expectations are so high there is no point in
responding, and any negotiations are likely to be
a waste of time. In extreme cases it can result in
an immediate impasse. A defendant may simply
“refuse to dignify” what is deemed to be an excessive
demand with any response.
Conversely, lowball offers are likely to be seen
by plaintiffs (and their attorneys) as insulting or
demeaning. This is particularly true if the claim
is based on personal injuries or grievances. Such
an offer is also likely to be viewed as an indication
the defendant is not motivated to settle, or is not
negotiating in good faith.