Settlement Tactics Series: How to read the other side

December 12, 2014

Settlement ADRSo far in this series, we’ve covered the beginning and the end of negotiation, but we’ve delved very little into the actual art of negotiation itself.  That shortcoming will be rectified starting with today’s installment, in which we look at how to read your opposing party while in settlement.  Below are some tips to that end.

Identify early on whether the opposing party is engaging in manipulative or dishonest tactics

In what should come as no surprise to anyone, there are some attorneys out there who attempt to heavily manipulate the other party through dishonest means or otherwise.  Encountering them is just a part of life as an attorney.

Your job in negotiating against one of these attorneys isn’t the Sisyphean task of trying to stop this behavior, but only recognizing it when you see it, and preparing yourself and your case for it accordingly.

Although there are a wide variety of these tactics to be wary of – more than I can reasonably cover here – there is one that seems to show itself more than the others.  And this is one in which the opposing party alternates between conciliation and antagonism.  For example, an opposing counsel may act interested in resolving the dispute in a negotiated settlement, but as soon as things aren’t going his or her way, he or she will simply threaten to walk away from the settlement.  This threat is usually only that, and it’s a threat made to try to control the direction of the negotiation.

It’s important to not feel intimidated when faced with such maneuverings or similar ones.  Do not allow your client to give concessions in response, and you should keep in mind that, if the other party is truly willing to walk away from negotiations simply because your client isn’t doing what the other side wants, it’s not really that big of a loss that negotiations fell through.

Be aware of the other party’s non-verbal cues

Most experts on negotiation will tell you that it’s important to always keep a “poker face” by masking all expression of emotion so as not to give anyone else insight into what you are thinking.

Fortunately, most people aren’t very good at keeping a poker face – especially non-attorney clients.  As such, you should monitor the opposing party (both client and attorney) for any non-verbal cues they give away.  This could be something as simple as a change in facial expression, composure, or some other physical movement such as writing notes or ruffling through papers.

As important as the non-verbal cue that you notice is the stimulus that prompts it.  That is, what was said or done to cause the change in the opposing party?  Learning to read these cues can tell you quite a bit about the other side’s position, and it may give you an advantage in deciding the direction to take in your settlement efforts.

Consider the other party’s words and actions in the light of their interests

Along the same line as reading the opposition’s non-verbal cues for additional insight is framing the other party’s words and actions within what you perceive their interests to be.  This can offer a deeper understanding not only of what your opposition is truly saying, but also of their interests in dispute themselves.

Sometimes, the opposing party’s words and actions fall right in line with what you would expect from someone with the interests you believe them to have.  Other times, though, the opposition may do or say something that flies in the face of your expectations, and when this happens, you need to reevaluate your understanding of their interests.

Why is it so important to understand the interests of the other side?  To make reaching a settlement easier.  If you know with what your opposition wants to walk away from the negotiation, you can make your proposals that much more appealing to them.

And this is the same reason why you should be always keeping your opposing party’s interests in mind when interacting with or observing them: to maintain an ongoing understanding of where they are coming from so that your settlement efforts can go more smoothly.

Scrutinize the opponent’s statements and proposals for ulterior motives

Of course, sometimes your opposition is actively trying to conceal information from you, typically to gain an advantage in negotiation.  And it is for this reason that you should scrutinize the opposing party’s words and deeds for any ulterior motives.  If something doesn’t quite add up in what they are saying, there’s probably something that they aren’t telling you, and you need to consider the different possibilities of what that could be.

Just as with discerning the opposition’s interests, it’s important to have all possible information available to you before you make the decision to settle.  But unlike your attention to the opposing party’s interests, you are looking for ulterior motives not primarily to make reaching a settlement easier, but to protect your client’s interests to make sure that there isn’t something in the settlement that could harm your client afterwards.