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The Art of Negotiation


The failure to reach an agreement on Friday, January 19, 2018, the ensuing government shutdown, and the temporary budget agreement reached on Monday, January 22, 2018, demonstrated that the art of negotiation in our nation’s capital is, to put it mildly, in need of improvement. Over the next three weeks, members of Congress will be attempting to resolve the contentious issues of border security (read: funding for The Wall), military spending, and of course, immigration reform (read: DACA). With the parties divided within themselves on these hot-button issues, the ability to develop nuanced positions and offer compromises is more crucial than ever. Despite some members of Congress attempting to engage in a productive negotiating process, the majority of members seem intent on retreating to their ideological corners to satisfy the hardliners in their parties and constituencies. What these members have failed to learn is the art of negotiation.


There are some who argue that to be a lawyer is, quite simply, to be a negotiator. It is true that 95% of all civil claims are concluded by negotiation and not litigation. Of those claims that actually go to trial, only a fraction actually go to verdict, and of those that do, a substantial portion are settled pending appeal. Even in criminal law, the majority of inmates currently in prison are there due to a negotiated plea bargain and not a trial.

Today’s lawyer is increasingly called upon to be a problem-solver, weighing in on business decisions, employer-employee relations and policy formation (such as sexual harassment in the workplace), medical liability issues and more. Being an effective problem-solver means being a skilled negotiator.


At the outset of any negotiation or interaction, there are three essential pieces of information that you must know in order to be successful: (1) whom you are dealing with; (2) what your client wants; and (3) what the other side/person will accept.

The first step in any negotiating process is gathering information on not only the subject matter of the negotiation, but on the person and entity with whom you will be negotiating. As the saying goes, knowledge is power. Which leads to the second step: leverage. Always evaluate your client’s amount of leverage honestly by determining how much your client needs the negotiation to be resolved in a certain way versus how much your opponent needs a certain resolution. Determine what alternatives exist and their relative values.

The third step is preparation. Successful negotiations are accomplished by negotiators who know their material and their opponents, and who have prepared their presentations and their strategy. Negotiations are not a time to “wing it” simply because the formal rules of court are not in place. Along those lines, the fourth step is strategic: controlling the agenda. Set deadlines, structure meetings, and in general pay attention to the psychology and dynamic underlying the process.

The fifth step is one that many negotiators overlook: design an offer that makes your opponent feel like a winner. Even if your client has most of the leverage and could demand burdensome terms, doing so might provoke your opponent and cause a break down in negotiations, denying your client the resolution he/she wants. Even if an agreement is reached, a lopsided agreement with burdensome demands can cause long-term problems. It is a better strategy to construct an offer that gives your opponent a way to “save face” or better yet, contains genuinely constructive terms on which to move forward, particularly if you have an ongoing relationship with your opponent.


The following are points to identify before and during a negotiation:

  1. Goals: what are the goals of both sides;
  2. Trades: what can you trade that the other side wants?
  3. Alternatives: what are the alternatives to negotiation?
  4. History: what is the history of the relationship of the parties and will it influence the negotiations?
  5. Expected outcome: what is the expected outcome of the negotiation?
  6. Consequences: what are the consequences of winning or losing for each side?
  7. Power: who has what power in the relationship? Who controls the resources? What power does your opponent have to deliver what you hope for?


If you or someone you know has been injured, contact Dave Thomas at The Thomas Law Firm for a free consultation regarding your legal rights.

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