Book Excerpts

Below please find excerpts from “Your Winning Edge-The Lawsuit Game and It’s Alternatives”
©2006 by Ronald K Stitch.  I hope you find this information useful.

CHAPTER TWO - KEEPING CONTROL, NEGOTIATION & MEDIATION

NEGOTIATION

Negotiation is the process of conferring, discussing and/or bargaining to reach an agreement.  In my opinion, it is the best way to resolve a dispute. Most importantly, it is the best way to obtain the desired results.  To put negotiation in perspective, the by-products of other dispute resolution methods need to be examined:

· At least some control of resolution of the problem will be given up;

· The result becomes more uncertain;

· Third parties become involved which will add complexity to the dispute;

· When a third party becomes involved, that party's skill at  mediating, arbitrating, or litigating the dispute  will be relied on;

· When involving third parties in the process, their needs and interests will play a role in your dispute;

· The monetary cost of resolving the dispute will probably increase;

· As hard as confronting the opponent may be, the emotional costs when involving a third party may increase; and,

· The resolution of the dispute may drag on. Considering these factors, you will be more likely to get the desired results by negotiation. Of course, effective negotiation is the key.  Generally, negotiation may:

· Take less time than the other methods.

· Cost less money.

· Have a lower emotional cost.

· Give the best chance of obtaining the desired results.

Like some of the other methods of resolving disputes, negotiation is:

· Private

· Allows creativity

· Allows opportunities to preserve the relationship between the parties to the dispute.

EFFECTIVE NEGOTIATING

The most important factor in becoming an effective negotiator is to:
recognize that you have the  power to negotiate disputes. To be effective, you should:

· Prepare for the negotiation by gathering facts and information about the
issues and the other person or company being dealt with.
An attorney or expert who has experience negotiating in a certain field may be consulted with to obtain information that can be used in the negotiation.

· Consider what process of negotiation will be the most effective toward getting the best result:

A.  Will it be a meeting or meetings?

B.  Will it be a series of letters going back and forth?

C.  Will it be a series of phone calls?

D.  Will it be a combination of these processes?

· Read books about negotiation.   Some prominent negotiation books are listed in the
bibliography.

· Talk about the problem with a friend or trusted colleague.  Ask how he would approach the
problem.

· Talk to a lawyer or mediator about techniques that could be used to help bring you and your
adversary closer together.

· Learn as much as possible about the opponent’s circumstances.  What is motivating him? 
What are the interests behind his stated position(s)?

· Consider all the options.  What are the ramifications of each option? Is ignoring or avoiding
the problem a possibility?  Are there other ways to simply avoid the dispute all together? 
Is legal action a viable alternative?

· Talk to your opponent about joint resolution of the mutual problem that exists between the two
of you.  Explain that even if he doesn’t see that there is a problem, a problem exists because
your relationship with him is at stake.  Or, a problem exists because each of you will end up
devoting time and energy to the problem if a satisfactory result cannot be negotiated and you
are “forced” to proceed with a more intrusive dispute resolution method or legal action.

· Have faith in your ability to achieve a favorable outcome.  Draw on past      experiences. Go for the best result that can be achieved.

Learn and use these “tried and true” negotiating techniques:

· Ask questions - note what is not said by your opponent and observe his body language.  Also, use questions to make your opponent invest time and energy into you.

· Stall - if there is something to gain by waiting

· Bluff - don't let the other side know your upset or happy

· Act dumb - let your opponent help you with filling in the details by asking questions

· Use silence - use not speaking to your advantage.  The other side may speak or your silence may cause the other side to think the worst.

· Negotiate on the telephone when you initiate the call - this gives you the advantage.

· Separate people from the problem - be polite to the person and hard on the problem you are negotiating about.

· Try and get the other side to make the first offer - that way you can find out his thinking and position first.  Also, he may offer you a deal better than you expected.

· Find out the other side's time deadline - and, even if you have a deadline, never let on you are acting under pressure.

HIRING A PROFESSIONAL NEGOTIATOR

If you decide not to negotiate alone and want to hire a negotiator to help with the dispute, consider the following:

The dynamics of the negotiation will become more complex.  It will no longer be only the negotiating parties who will influence or even decide the outcome of the negotiation.  Both parties' negotiators will have an impact on the outcome.

Involving professional negotiators may prove to be an expedient way to resolve your dispute.  Experienced negotiators can help the parties clarify the decisions which need to be made to reach an agreement.  However, any negotiator may hinder or hurt the chances to bring the negotiation to a successful close as well.

Never give up decision making power regarding the whole dispute or the points that really matter.  If this power is given up, you may end up with a decision that you are not really happy with.  You may also be legally bound to the decision that has been reached by someone else.  For example, a lawyer generally has the power to make binding decisions for his client.

Giving up power to make decisions takes away an advantage of hiring a third party negotiator in the first place.  Utilizing a third-party allows the opportunity to take a break in the negotiations for consultations between negotiators and the parties.  The negotiator and the party may brainstorm about the best way to handle the pending negotiations.  Also, the negotiator can get as much as he can while not giving anything up until it is approved by you.  To maintain control over the negotiator and the negotiation:

· Make it clear up front that it is very important to be kept informed about the progress or lack of progress in the negotiation.

· Instruct the negotiator whether or not to provide written reports and/or phone calls about the progress of the negotiation.

· Advise him of the points or items that require prior authorization and the concessions that may be made without bing consulted.

· Make sure the negotiator is accessible.   You don't need someone who won’t return your phone calls.

· Make sure the fee arrangement with the negotiator is clear.

· Make sure you are satisfied you will be getting the most for your money.

· Solicit the negotiator’s honest assessment of your dispute.  Some useful information may be obtained.  You may also decide that your views are a lot different from the prospective negotiator’s views and decide to hire someone else.

· Ask the negotiator about his personal feelings or views about the dispute.  See if you agree with his views or not.  Keep in mind that the negotiator’s personal feelings and perspective about the problem will influence, in some way, the result of the negotiation.

· Consider the negotiator’s advice but don’t accept it blindly.  Make sure the rationale behind the advice is understood.  If the advice stems from the previous experience of the negotiator, ask what specific experience(s) the negotiator has had in cases like yours.

A NOTE ABOUT LAW, LAWYERS AND NEGOTIATION

Essentially, law is power if one has a dispute with another party or wants to prevent problems in the future.  It may be used to force a party to pay money or do something.  It may also be used as a tool to enforce a negotiator's agreement if it falls apart.  Yet, law should only be one of several factors that should be considered when negotiating a dispute.

Below please find excerpts from “Your Winning Edge-The Lawsuit Game and It’s Alternatives”
©2006 by Ronald K Stitch.  I hope you find this information useful.

CHAPTER TWO - KEEPING CONTROL, NEGOTIATION & MEDIATION

Part 2

Generally, lawyers are pre-occupied with the law.  When they negotiate with other lawyers, the discussion revolves around each lawyer's opinion of how a court would decide a case.  Indeed, in giving competent legal advice, a lawyer must tell his client how he views the case based upon existing statutes or precedent established by case law relevant to the given factual situation.  Often, the law factor takes over and becomes the sole factor on which a dispute is eventually settled.  This one factor analysis ignores the true needs and concerns of the parties in a dispute.

Especially in some areas of law, lawyers are familiar and friendly with other lawyers in their community.  They see each other often in court and over years of practice, become familiar with other lawyers and their styles of negotiation, demeanor and practice before the court.  This may lead a client to believe that their lawyer is too chummy with the other side and is selling out their position.  Unless the client is there listening to every word their lawyer is stating to the other side, it is easy for him to become paranoid in this regard.  If you feel this way, you should request that you be present during all negotiations on your behalf.

The bottom line in having a lawyer represent you is that you either trust your lawyer to be your advocate or you don't.  Lawyers are bound by their code of ethics to be zealous advocates of their client's interests.  This doesn't necessarily mean that they will be advocates of their client's positions.  The difference between one's position and the interests behind those positions leaves room for negotiation and allows two or more parties to a dispute, with or without their attorneys, to reach resolution without having a judge or jury decide the issue.  If you will only resolve your entire dispute or a part of it a certain way, be sure and communicate that to your attorney.  That way, your attorney will know that you are only willing to resolve your dispute a certain way, even though there may be other solutions.

If you feel uncomfortable with a certain lawyer being your advocate, then you need to find someone you are comfortable with or represent yourself.  It is very hard for some people not to be involved in every step of the process.  This is a decision that may require some soul searching on your behalf when you hire an attorney to represent you in the first place.  You need to ask yourself how much control you are willing to delegate to a person who has the power to make decisions on your behalf.  If you feel uncomfortable with letting go, then you will need to be kept informed by your attorney of the negotiation process in detail, whether that process takes place in his office or in the hallways of the courtroom.  If you want to control the negotiations, but want to be represented by a lawyer, the more detailed instructions you give your lawyer, the better off you will be.

MEDIATION

In mediation, a neutral third-party will assist you in the negotiations.  Most forms of mediation are less intrusive than arbitration and going to court where a third-party makes decisions about the dispute.

National organizations of mediators promote the following aspects of mediation:

· It's confidential.

· Relatively inexpensive.

· It empowers the parties to make their own decisions and be creative in solutions to the dispute.

· Generally agreements are longer lasting because the parties solve their own problems.

· It preserves whatever relationship exists between the parties.

Some assert that mediation is most effective where there are emotional underpinnings to the dispute, such as dissolution of marriage action, a sexual harassment complaint, discrimination law suit or a neighbor dispute.  Actually, there is no reason why mediation cannot be used to resolve all disputes.  If it doesn’t work, the parties can always use a method which is more intrusive.  If mediation works, not only will the dispute be resolved, but time and money will be saved as well.

Mediation, however, is not without problems.  If litigation is inevitable, the mediation process may be used by a party not committed to the process to gain valuable information that may be used against the other party in litigation.  If the information can be verified from outside the mediation process, that information can be used as evidence in a lawsuit.   The information will then give the advantage to the party obtaining it in the mediation.  Also, mediation may be used to stall the process between the parties to resolve their dispute.

In mediation, each party to the dispute negotiates in the presence of the mediator.  There may be advisors, including attorneys, for each of the parties present. The mediator has a variety of tools at his disposal, including:

· Asking questions to help focus the parties on the issues.

· Testing the reality of a party’s position by comparing that position to an outside source or standard, e.g.,  your opinion of the value of the family residence compared with the opinion of the value of the residence by a professional appraiser,

· Re-framing statements to get parties to really listen to each other. By re-stating the parties’ statements in a different way, the mediator can emphasize another point so that the other party will hear what the party is saying from a different perspective.  Also, the mediator may use re-framing to focus the parties on a different aspect of the problem or possible solution.

· Asking questions to get the parties to articulate the interests behind their positions to find out what really motivates them or what they really need.  In this way, options may be explored that the parties may not have thought about.  The negotiating pie may be expanded so that each party’s needs are met creating a win-win situation.

· Summarizing in writing what each party said in mediation and asking each party to verify the accuracy of the writing at the next session.

· Reducing the mediated agreement to writing.

· Privately talking to each party separately to help explore possibilities of settlement, known as “caucusing”.

Law should be looked at as only one standard that may used in helping the parties resolve their dispute.  Other standards and the parties’ personal interests or needs should also be considered.  You may be preoccupied with the law and want your rights protected.  Yet, it may be more prudent for you and the party you are having the dispute with to resolve the dispute based upon what is needed rather than what the law provides.

Mediation, like negotiation, is a conciliatory way to resolve disputes.  It can consider all the parties needs and tangible or intangible factors including those used to create a stable, emotional and moral relationship between the parties.  This is not to say that mediated agreements should not be legally enforceable, only that the parties can agree to just about anything they want to and can decide to make the agreement legally enforceable or not.

Legal action is only one way to resolve a dispute over a mediated agreement.   The parties can always go back to mediation.  Mediation may be less expensive than a different method of dispute resolution if the parties are careful to monitor the time and costs of mediation and retain their commitment to the process.  Mediation allows parties to decide a dispute, as fast or slow as they want.  It also allows them to create their own destiny.

Whether or not the mediation is successful will depend on the skill and knowledge of the mediator.  Accordingly, choosing the right mediator, as discussed in Chapter 4, is an important task.  There is also a need for attorney participants to understand the mediation process.  That way, they may help, rather than hinder, the process.