"Negotiating With the King"

“You’d better be careful — you’re about to negotiate with the King!”

We’ve all heard this at some point in our careers.  Our counterparty is well-connected with the judge.  He’s an influential member of the local bar.  He has fifty years’ worth of hard-earned reputation as the lion of the district.  He’s the man with the power.

A panel comprising mediator Elizabeth Bader of San Francisco, insurance counsel Steven Joseph (of Western Word Insurance in New Jersey) and Gerald Strachan (of Chartis Insurance in Philadelphia) and plaintiff attorney Jacqueline Tessendorf (of Columbus, Nebraska) shared perceptive and subtle views on how to get what you need from the King, across the negotiating table.

Steven Joseph relayed his trial strategy:  To say in his opening statement “I will promise you the following and I always keep my promises;” and to say in his closing argument “I like to argue cases that rely on a jury’s common sense, and that’s why I like to argue this case.”  He carries this strategy when negotiating with the King.  He conveys at the outset, with politeness and deference, that however many threatening hitters the King may have, he has Roger Clemens and he is entirely willing to play ball.  This, said Joseph, is called getting back the power.

Gerald Strachan reminded us that the King became the King for a reason — he has a formidable skill set and is by now used to being deferred to.  So Strachan is respectful to the King, because he needs the King to listen, to consider and to respect him back.  The most effective negotiators are ethical, experienced and trustworthy, and Strachan takes pains to be seen by the King as that kind of negotiator.  He also demonstrates, early on, that he has the ability to take the King to a place the King doesn’t want to go.  In a nutshell:  He shows the King both that he can be trusted, and that he can compel an unpleasant result.

Elizabeth Bader took us to an uncomfortable but familiar place: She noted that almost all negotiators enter the room with an inflated sense of confidence, which eventually becomes deflated until reality yields a resolution.  She called it the “IDR Cycle” and cautioned that negotiator’s overconfidence in preparation infects their sense of who they are.  The negotiator’s powerful gesture, unconnected to the reality of the situation, delays resolution and inhibits the real work of problem-solving.  Real power, says Bader, is knowing who you are and negotiating from that place.  Very often, when she mediates, she finds that is responsible for the process of getting inflated egos past deflation and into the reality of who they are, who they’re not, and how to solve the problem before them.  “It’s about the shared problem,” Bader said; “it’s not about them.”

Ms. Tessendorf begged to differ.  As claimants’ representative, she said, “It is absolutely about them.”  The defendant has injured her client.  Her client has been unable to get over it.  Indeed, her client is obsessed by it, she can’t get past it.  The lawyer assisting this client needs to help her get through this strong emotion before the client can be ready to negotiate.  The claimant needs to say what she needs besides money, and the defendant (often an insurance company, not the tortfeasor himself) may not understand why. 

Ms. Tessendorf gave a memorable example of a client seriously injured when a car crossed the center line.  The client needed to know why — what had the driver been doing beforehand?  Were they drinking?  Sneezing?  Talking on a cell phone?  Reaching for a fallen cigarette lighter?  Neither attorney understood the claimant’s insistence on this — liability was conceded and they didn’t need to establish that fact that the client sought in order to settle the case.  But Ms. Tessendorf eventually realized that they needed it to settle the claimant.  It turned out that the other driver was trying to brush off a spider that had descended on her and was inattentive.  The client, for the first time, learned what had happened, how the accdent had occurred.  The claimant needed to tell how bad things have been for her, and needed to learn why they had happened.  She needed to satisfy her emotional inquest (if you will).  She needed to get an apology.  Without respect for these emotions, at least in this case, there could have been be no eventual, “reasonable” outcome.

Mediator Bader wholeheartedly agreed.  For all the professionals at the table, who do this every day, there is one person — the claimant — for whom this is the greatest tragedy of their life.  The King may not care why the car crossed the center line, but the mediator and the claimant’s representative must.

Some other gems from this insightful discussion:

• Will Rogers said “It’s not what we don’t know, it’s what we do know that ain’t so.”  Good negotiators ask more questions than they answer.  The King is eager to talk about his strength; the underdog gives up less information, and less-valuable information, and gains more insight.
• Burn the mediator who says, “I understand how you feel.”  No you don’t.  What are you trying to do, purchase their trust?  No one understands how they feel.  Better to say “I see that this ruined you, I respect the fact that you’ve been irrevocably injured.”  Just show that you’ve heard what they said, that’s all. Respect the claimant’s unique sorrow, and don’t dare suggest that you — or anyone — knows how they feel.
• The balance of power can abruptly shifts once the injured claimant decides that she needs to go all the way.  At trial, the plaintiff becomes the King.
• The professional relationship with the adversary should be both cooperative and firm.  “I’ve studied this file and, based on my experience, the number is $XX.  It is $XX today and it will be $XX in three years.”  At lunch or talking on the phone about discovery, fit in that number.  A few days after any conference or motion, call with that number.  Engage in “holistic negotiation.”  If the number is not accepted, ask for their cooperation: “Please help me out here, what am I missing?”  or “I know we pick a jury on Monday but  if $XX is going to work, can you let me know by Friday?  My kid has a softball game on Saturday morning and if we’re going to close it up I’d rather know so I don’t spend Saturday with my stuff all over the dining room table.”  Approaching cases aggressively but also interpersonally leads to a much improved way of life.

Jerry Roscoe of JAMS was the able moderator of the session, and a swell time was had by all.