Benefits of a Positive“Can-Do” Approach to Negotiations

I have been encouraging people - and lawyers in particular - to embrace a positive negotiation process.  Instead of arguing what, in your opinion, your opponent “can’t do” to prove their claims or defenses, focus your presentations - and everyone else’s attention - on what you “can do” to prove yours.  Specifically, start a mediation by summarizing the best evidence you can present at a trial that creates risk of an adverse verdict for the opposing side.  I promote this “can do” approach to settlement negotiations because it helps people identify, appreciate, and then manage their respective risks - and all negotiations are about risk management.  This is a positive negotiation approach not just because it focuses on what people can do.  It also redirects people away from a negative perception of negotiations (e.g., I am being asked to compromise and I am being told everyone will leave feeling disappointed) and toward a positive understanding of the process (i.e., this is an opportunity for me to manage and resolve genuine risk).  There are, however, other benefits to the positive negotiation approach. 

Benefit 1: It Objectifies and Therefore Advances the Mediation Effort.  

As I noted in my post How Positive Negotiations Can Avert Personalizing the Problem — Appreciated Solutions, focusing on the evidence you can present at a trial objectifies a mediation instead of personalizing it.  Although it can be tempting to argue how a judge or jury might rule on that evidence, doing so injects your own judgment on the merits of the opposing party’s case.  Rightly or wrongly, people can take such judgments personally, triggering upset and intransigence.  By focusing your mediation presentation on just your best evidence, you are far more likely to draw an opposing party into the objective risk appreciation and risk management process that otherwise leads to good resolutions.  A mediator who utilizes a positive negotiation approach will use each side’s “can do” evidence to coax everyone through a fair yet candid appreciation of their respective risks.   

Benefit 2: It Promotes a Full Appreciation of Each Party’s “BATNA”.  

The best evidence you can present at trial is that fallback position Roger Fisher and William Urey call your “BATNA” - your “best alternative to a negotiated agreement.”  See, Getting to Yes; Negotiating Agreement Without Giving In.  By summarizing the best evidence you have that creates risk for your opposing party, you are demonstrating how your BATNA can make the “option of not reaching an agreement” - that is, the risk of a trial - less attractive to your opposing party than a negotiated settlement.  That is, you are providing the other side with substantive reasons to work with you to reach a negotiated and shared resolution.  

Benefit 3: It Enhances Your Credibility & Persuasiveness.  

By succinctly highlighting the evidence that creates risk for the other side, you are demonstrating your knowledge of your case, the work you have done to build that case, and your own confidence in the value of your knowledge and your work.  All of that enhances your credibility and, in turn, your persuasiveness.  Furthermore, if you do this politely and respectfully you highlight your own confidence in what you can do, adding to your credibility and your ability to persuade.

Benefit 4: It Highlights the Genuine Value of the Services you Provide.

Zeroing in on the evidence you have developed not only highlights the risk you have created for the opposing party, but it also draws everyone’s attention - and your client’s attention in particular - to the value of your work.  Good resolutions are the product of good lawyering.  By communicating your professionalism through your mastery of the critical evidence, you are  giving your client an opportunity to appreciate the value of your work and the service that you provide.  

Benefit 5: It is Good for You.

Focusing on what you can do places you in a positive, “can-do” state of mind - which is immensely important for your own personal wellbeing.  It is no secret lawyering can be stressful, and there is plenty of evidence to show excess stress can seriously undermine one’s emotional and physical wellbeing.  Much of that stress comes from the negativity and even bullying that continues to pervade litigation to this day.  By being a “can-do” person, however, you are not only advancing your client’s best interests, but you are also raising a benign barricade to much of the negativity that remains within this profession.