How to approach settlement negotiations

Several million civil lawsuits are filed in the U.S. each year, and more than 90 percent of them are resolved by settlement. The way you approach settlement negotiations will determine how effective you are in helping most of your clients resolve their disputes. 

The goal of any negotiation, including a settlement negotiation, is to help the parties find common ground so they can reach an agreement based on their mutual consent.  The goal is not to win an argument or convince the other party that your client’s position is the correct one. Arguing your client’s legal position in a settlement negotiation is likely to provoke an adversarial response that will make it more difficult to resolve the dispute.

Before entering into settlement negotiations, it is important to fully understand your client’s goals and objectives. Questions such as these can serve as a checklist of issues to consider:

 - How does the matter being negotiated affect the client’s broader interests?

 - What does the client want to achieve in the negotiation?

 - What does the client want to avoid?

 - Is there a range of acceptable outcomes?

 - Are matters of principle or personal values involved?

 - What is the emotional content of the matter being negotiated?

 - Are there any non-negotiable issues?

Similar questions can help you form a tentative impression about the likely goals and objectives of the other party or parties to the negotiation.

In preparing for a settlement negotiation, it is helpful to remember that people become involved in disputes over things they care about.  A dispute is seldom only about money. Emotional considerations, issues of self-identity or reputation, business factors, relationships and personal values are usually important and are sometimes more important than the money involved.

Settlement negotiations that encompass the broader interests of the parties can enable them to find common ground beyond the narrow confines of their respective legal positions and create a “win-win” solution to resolve the dispute.  When that happens, all the parties may be reasonably happy with the settlement outcome.

It is never too early to start talking about settlement. Disputes can be resolved with little, if any, formal pretrial discovery. Most clients dislike the cost, uncertainty, time commitments and stress associated with the litigation process. They will be relieved to have their dispute resolved as early as possible on acceptable terms.

John Allison is a professional career coach backed by years of experience as a successful lawyer. He is the founder of The Coach for Lawyers and author of "The Art of Practicing Law: A Practical Guide for Lawyers."