One Key to Successful Negotiation?
Making Sure Your Client Knows What To Expect

By Teresa Zink

Success in negotiation often hinges more on how well you communicate with and prepare your client than on anything that happens at the negotiating table, a panel of skilled women lawyers told listeners at HB Litigation Conferences’ February teleconference on Effective Negotiation Skills for Women Lawyers.

“If you have any kind of fear of dealing with your client or fear of delivering bad news, you are not going to be able to appropriately manage your client’s expectations for any kind of negotiation,” said panelist Linda Dakin-Grimm of Milbank, Tweed, Hadley & McCloy.

Before entering into any kind of negotiation, Dakin-Grimm says, “You really absolutely have to have spent enough time with your client to make sure that they understand both the strengths and the weaknesses of their position,” even if that means having the conversation more than once.

“Sometimes clients don’t want to hear the weaknesses of their position,” she explains.  “If you tell them the weaknesses, they just reject them or don’t hear you.  That means that you might have to do a broken record kind of thing and have repeated preparation discussions.”

Full Communication
The goal is to make sure that your client understands “your best view, well reasoned and articulated, on what their best outcome or the most likely outcome of the case is going to be.  Until you get your client in a position where they really understand that, they are not going to be able to make the business decisions that they need to make about where they can and will or won’t concede.”

In addition, she says, you also need to communicate to your client “what your view is of the opponent’s personality, ability to be rational and so on.”   For example, she said, “If you truly have a completely irrational opponent who is pursuing their position based on emotion, you might have to evaluate and factor that into your positions.  All of these things have to be discussed with your client so that they don’t go into the negotiation with unreasonable expectations.”

While the rare unsettle-able case does exist, Dakin-Grimm explains, most cases that fail to settle “don’t settle because the client’s expectations haven’t been appropriately managed and the client hasn’t been appropriately educated going into the discussions.”

Panelist Eileen Kavanagh of Litchfield Cavo added, “that is not a conversation you want to have with your client during mediation.  You do not want to be off in the little room to the side getting berated by your client or trying to get them to see the wisdom of what you have recommended to them.  If you get as far as the mediation and you and your client are not on the same page, you are likely not only to have a failed mediation, but to seriously and perhaps irrevocably damage your relationship with your client because they are going to feel that you left them out to dry.”

No Surprises
Both women agreed that you have to be willing to have unpleasant conversations with your client.  “That is really the important point,” said Dakin-Grimm.  “People don’t like to deliver bad news.  I personally have as a goal in these things to not have the mediator ever tell my client anything that they haven’t already heard and thought about before we got there.”

Kavanagh added, “Every once in awhile you have a client who will belligerently ask you, ‘What?  Are you afraid to try this case?’ That is something that may happen more with women than with men.  I think the only response to that is, ‘I am not afraid to try any case, but I sure hate to lose them.  And this is one where we might lose.  So you need to really think about what I am telling you,’ and go forward from there.  There is no need to back down from your position when a client is getting confrontational because he or she is upset,” she said.  “If you have done the evaluation, you need to stick to your guns and not be afraid to deliver the bad news.

The Audio Package of the Effective Negotiation Skills for Women Lawyers Teleconference recorded February 12, 2009 is available for $150. The full transcript is $50. To order, contact Allison Emery at allison.emery@litigationconferences.com or 484-324-2755 x205.