dougnoll’s posthaven

In legal negotiation, your client will have to make the final decision about whether to make a deal or not. As we have seen, human decision-making in the face of great risk and uncertainty is fraught with peril. Our brains simply do not handle statistics, probabilities, or logical thinking very well, especially when under stress, fear, or other emotion.

The job of the lawyer is to not only manage the negotiation so that the best possible outcome can be obtained, but also to help the client overcome the inherent distortions of the human brain so that decisional error is minimized. This is what I mean by cognitive counseling.
Some lawyers shy away from this idea saying that they are not therapists. I think it is important to understand that were not talking about therapy. Therapy involves diagnosis, prescription, and prognosis with the goal of healing injury. Cognitive counseling is more like coaching to help clients make good decisions.

The first step in cognitive counseling is to recognize decisional errors. This will take some practice, but armed with the information he received from you so far, you can see that any type of emotional reaction is potentially the cause of decisional error.

In addition to calling out decisional errors, you can slow the process down. Sometimes getting outside and walking around for a while is a useful way of getting some cognitive rest. Do not allow the process to accelerate so quickly that your client becomes overwhelmed emotionally or cognitively. Frequently, clients will leap ahead to find objections why a certain decision should not be made. As a cognitive counselor, try to maintain the decision-making one step at a time and bring your client back when he or she leaps forward.

In these situations, you will have to make an empathic connection with your client by listening, reading his or her emotional data field, summarizing the essence of what your client is saying, and labeling his or her emotional experience. When your client seems overwhelmed, have your client focus on what is really important. Most lawsuits are not life-changing. Therefore, you can ask questions about what life will look like five and 10 years ahead. Helping your client gain perspective on what is really important can be of crucial importance during the heat of a negotiation.

As I have repeatedly said, take good notes and be sure to memorialize your conversations with your client in a follow-up letter. The problem of the under settled case is growing as negotiation and mediation becomes more of a mainline practice. You will need to keep your client in line by making a written history of what happened.

Cognitive counseling is an iterative process, which means that you will repeat the same things over and over again. Sometimes it will seem like you are spinning your wheels. However, it is your repetition, patience, compassion, and understanding that will be the greatest service to your client. Your client will not remember your brilliant legal analysis. She will remember how you treated her and a very difficult and extreme moment of her life.

Remember, the best way to win the game is to call it yourself.

Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

In this post, I want to talk a little bit about the attributes of a master negotiator.
I have mediated thousands of conflicts of all different kinds, both litigated and non-litigated. I have had the opportunity to work with some truly masterful negotiators. There are some uniform attributes and characteristics that are worth keeping in mind as you develop into a powerful, kick ass negotiator.
The first attribute is to recognize that negotiation is a process, not an event. In law school you are taught that the ultimate outcome is either a verdict or a decision on appeal. The focus is on the outcome for the client and not a lot of time is spent on all the processes. Thus, the conversations are around how to avoid mistakes, how to obtain the best outcomes for clients, and the focus is on winning.
In negotiation, the outcome will be defined by how well the process is managed. Master negotiators understand that process determines outcome. Master negotiators will spend considerable time making sure that the process is functioning properly to move the parties towards settlement. In short, master negotiators focus on process.
 Master negotiators also recognize that legal negotiation involves decision-making in the face of great uncertainty and risk. For the client, the stakes of a lawsuit can be very high. No one can predict what a jury will do in any given case. Therefore, sending a dispute to trial for decision is not quite as random as a roulette wheel, but sometimes seems that way.
Master negotiators study disciplines far beyond the law. They want to understand the principles behind cognitive biases and decision-making errors. They understand that emotions drive decisions and therefore knowing about emotions in human brains is just as important as knowing about the applicable principles of law in a case.
Master negotiators also know that negotiation always contains a tension between competition and cooperation. On the one hand, negotiators wish to obtain the best outcome possible for their clients. But if they are too competitive, the negotiation will collapse in impasse. Thus, cooperation is needed. However, if cooperation is to freely given, the possibility of exploitation by the other side is always possible. The master negotiator manages that tension effectively.
The master negotiator cultivates a strategic mindset directed towards helping the client make the best decision possible with an eye towards the deep consequences of that decision in years ahead. Master negotiators recognize hardball players instantly. They have learned how to identify hardball tactics, label them, and deal with them by focusing on the process of negotiation. They do not stoop to emotional, ad hominem attacks or gratuitous comments at the ethics or behaviors of opposing counsel or parties.
Master negotiators also recognize that being a lawyer does not equate to being a master negotiator. Master negotiators have learned that law school teaches analysis based on an adversary ideology. Law school teaches students how to become appellate judges, read appellate decisions, and write appellate memorandums. Generally speaking, those skills are not used in negotiation. Although more law schools are offering elective courses in mediation and even in negotiation, these offerings are considered to be fringe courses. Many law professors do not consider the skills of negotiation to be worthy of instruction in the law curriculum.
Since so much of the law curriculum is based upon the reading and analysis of appellate decisions, litigation is taught as a zero-sum game in which there can only be a winner and a loser. In every case, law students must understand why one side lost, and the other side won. As they distill out the rules of law from the cases, they are indoctrinated in a philosophy that lawyering is about winning cases for clients. The core values of negotiation, which include cooperation, compromise, and collaboration with opposing counsel and parties are not only ignored in law school, they are disdained.
Master negotiators recognize that negotiation outcomes are not always as gratifying as trial outcomes, but neither are they as depressing. Since negotiation involves compromise, there is no high similar to the rush of winning a jury trial. In addition, lawyers do not measure themselves by their skill in negotiation. Rather, they seek reputations for toughness, trial competency, and dogged persistence against all odds. When was the last time you heard a lawyer described as a great negotiator?

Remember, the best way to win the game is to call it yourself.
Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com