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.