The Negotiator’s Fieldbook Series: Professionalism and Misguided Negotiating — EngagingConflicts.com
This chapter in The Negotiator’s Fieldbook is by Wayne Brazil. Here’s the annotation from the book’s Table of Contents:
A settlement judge is in the unique position of observing lots of high-stakes negotiating every day. Here, one of the US federal courts’ most highly regarded settlement judges discusses not only his reactions as a professional to the negotiators who come before him, but the kinds of errors they tend to make. Judges are not the only powerful figures who end up mediating our disputes, so if you expect to be negotiating any kind of case before any kind of powerful player, this chapter is important reading.
I’ve been an attorney representing a party at court-ordered settlement conferences (including one where the settlement facilitator mistook it for a mediation); a party at a settlement conference (regrettably–it’s never fun to be involved in a lawsuit); a settlement facilitator for parties represented by attorneys; and, for a short period of time, I was even an administrative hearing officer for a NM state administrative agency. This article is a masterful statement of things to consider when approaching these proceedings. It details how a busy judge who has hosted over 1500 settlement conferences “thinks” in this kind of negotiating setting. He is charmingly humble in his insights (”There is more than a little hubris in writing an essay that purports to identify errors that other people make.”). He is also explicit in his judgments (”I do not respect efforts, no matter how ’skillful,’ to get more for a client than is deserved under the law and evidence. How people treat one another is very important to me. I rank honesty among the highest of values–perhaps because I find dishonesty so threatening. I do not like greed or selfishness.”).
He first overviews the structure of his settlement conferences, cautioning that there is an expansive range of approaches and that his cannot be considered representative. His emphasize the goal of reducing the risk of “false failures,” i.e., failures to reach agreement caused by “serious social error[s] that irretrievably contaminate[] the emotional waters, or by our collective failure to guess accurately what terms might be accessible.” He conducts negotiating sessions primarily through private caucuses in order to neutralize these sources of failure, shuttling between the parties to facilitate agreement.
Judge Brazil then identifies 8 areas of lawyering mistakes based on violations of the “sub-cultural norms and practices” that U.S. civil litigators generally share: opening offers, misleading signals, speeches and speechifying, credibility, understanding the judge, gaming, trust and emotions. Here are some snippets concerning each (there is much more in the book’s chapter):
Opening offers: “While some of the practices and expectations that litigators generally bring to judicially hosted settlement dances seem morally primitive, at least at first blush, they likely have roots in the need to serve psychologically legitimate ends.”
[Frankly, as a practicing attorney who is trying to realistically integrate “science, ethics, and spirit” into my practice (whether as an attorney, trainer, facilitator, mediator, or what have you), this phrase — morally primitive– charms me!]
He advises that the gap between first offers be neither too small (when an attorney expects some kind of fight and may need to justify it, having nothing to fight about “can suck the viscera out of the process”); nor too big (it makes the offeror look foolish or naive, untrustworthy, and disrespectful, robs the offer of any semblance of fairness, and acts as a disincentive to investing substantial effort in the negotiating process).
Misleading signals: “Experienced settlement judges … [i]n some settlement contexts, [do not] take lawyers’ words literally. Instead, they understand the lawyers’ words as signals–as direction indicators. … A negotiator who does not understand this runs the risk of inviting the settlement judge to make erroneous assumptions….”
Speeches and speechifying: “Lawyers can do harm to their negotiation cause by the way they make their pitches to the settlement judge during private caucuses.” Further:
When law, evidence, and monetary value are the primary targets of inquiry … settlement judges want to feel that the mind of the lawyer who is sitting across the table from them is careful, balanced, attentive to detail and nuance, and fully cognizant of the ubiquity of indeterminacy in human affairs. It follows that overconfidence and bravado, defensiveness and rigidity, or dogged refusal to acknowledge any merit in any dimension of an opponent’s case or settlement proposal, are behaviors that are likely to make the settlement judge question the wisdom or intelligence or good faith of the negotiating lawyer.
Credibility: “A lawyer’s credibility stock with the settlement judge also is likely to drop significantly if she appears arrogant or condescending. Judges distrust a legal mind that thinks it has nothing to learn (even from a judge). Judges with ample egos (of whom there are many) are not likely to respond well to a lawyer who appears to think he is more intelligent and wiser than the judge. …A natural reaction to being treated with condescension is to want to strike back. Judges have natural reactions. It is unwise, to say the least, to make the judge want to strike back at you.”
Understanding the judge:
[B]efore a settlement conference convenes, good lawyers learn as much as they can about how their settlement judge operates and about her values and attitudes– and then take considerable care to teach their clients, in advance, what to expect. How much participation by the client will the judge invite? Will the judge give the client real opportunities to be directly involved? Will she put the client on the spot? Will she pressure the client to participate, to disclose sensitive information, to explain or justify the client’s conduct, or to change this settlement position? Will the judge be analytically aggressive and opinionated or essentially passive and gentled? Will she be comfortable or impatient with the feints and dissembling that tend to accompany settlement negotiations? Good lawyers understand that there is a wide range of judicial behavior in these settings–and that a client who is taken by surprise by the process, or by the role or behaviour of the judge, can be disoriented into anger, withdrawal, or even excessive malleability. Any such reaction can hurt, needlessly, the client’s interest in determining reliably what terms of settlement are appropriate and accessible.
Gaming: “‘[G]aming’ includes prominent … settlement negotiation conduct that is calculated to create artificial (falsely premised) pressures or incentives, or to intentionally deceive an opponent (and/or the settlement judge) about facts or circumstances that clearly are material to settlement decisions.” Further:
While there is a range of tolerance for gaming among judges, a lawyer who makes no effort to determine where the host of his settlement conference falls on this spectrum of tolerance risks serious error. Generally, a lawyer-negotiator is likely to do more harm to his client’s interests by overestimating a judge’s tolerance for gaming than by underestimating that tolerance.
Trust: “[H]ow lawyer-negotiators conduct themselves during settlement conferences can affect, sometimes significantly, how the settlement judge spends her time and energy, as well as the character of the role she decides to play in the negotiations. Judges are human beings who have predictable human reactions to the conduct and events they encounter. A settlement judge will react (even if not always visibly) to how others are acting in her presence and to how others treat her. A lawyer whose conduct strays from sub-culturally acceptable paths, or from courses that the judge finds comfortable or constructive, distracts the judge from her primary responsibilities and forces her to spend energy and thought trying to control her reactions and her conduct, energy and thought that she could otherwise spend more productively trying to determine how best to proceed with the negotiations.”
Emotions: “It is a mistake to ignore or trivialize genuine emotions in these settings. It can be important to acknowledge them–and, sometimes, to give them significant play in a safe environment that is made part of the settlement conference process. But, reasonably or not, settlement judges expect lawyers to think more than feel. So a lawyer whose approach seems dominated by emotion is not likely to enjoy as much credibility with a settlement judge as a lawyer who demonstrates an ability to remain calm and on analytical target. Judges respect a kind of self-control that permits a lawyer to listen–to remain open to new information and lines of reasoning and to incorporate them into a more richly textured understanding of all the circumstances pertinent to the settlement decision. Thus, genuine conviction, strongly felt, is likely to have the most telling effect (on the settlement judge and other parties) when it seems to emerge naturally, in warmth rather than fire, after and as the product of a long dialectical process that has included real consideration of all sides of the mater.”
Wayne Brazil has been a United States Magistrate Judge in northern California since 1984. Before joining the court, Judge Brazil was a law professor and a civil litigator. As a magistrate judge, he has handled a wide range o assignments in civil and criminal cases. He has hosted some 1500 settlement conferences. He helped design his court’s ADR program and supervises the professional staff that runs it. He has published a number of articles about court sponsorship of ADR programs and two books about judicially hosted settlement processes.
