FIRST OFFERS: There's an old saw in the negotiating game that the first offer that the other side makes merely is just that -- a "first offer" which should be interpreted as nothing more than an opening salvo, a floor (or ceiling, depending on which side you're on) that is intended only to set the stage for the back-and-forth exchange that is to follow. A number of ways to address this circumstance exist, and I'll focus on two of the most basic polar opposite ways: You either can acknowledge it to yourself as a given fact and simply "play the game," recognizing this as the easiest and most tried and true method of engaging in negotiations, or you can buck the trend, swim against the tide, and be a contrarian -- but if you do so, it is advisable to let your negotiating counterpart know unequivocally that this is what you are doing, because his or her natural inclination is to assume that you are just going to play the game in the traditional, time-honored "just-a-first-offer" sense. It's a little risky, because if you give your BAFO ("Best And Final Offer") first, and it's misinterpreted as a standard mere first-shot-across-the-bow-of-the-ship, the process rapidly can deteriorate into failure due to mixed messages. However, if the situation is right, and the message is communicated expressly, clearly, and forcefully, from a position of strength and credibility, it can expedite and enhance the deal-making process as well as the results (the ultimate terms of the deal reached) remarkably. I know this from personal experience: It's how I bought my house in the late 1980s. The technique has worked -- in appropriate circumstances -- on many occasions since.

CIVILITY: I recently saw something online that reminded me about what is a core negotiation issue for me: civility. The degree to which one employs ordinary civility in negotiations often has a marked effect on the bottom line result. It also can make life more pleasant, even in what fundamentally are adversarial situations, a circumstance that is pretty much the norm for business litigators such as myself. A straightforward negative example is the opposing counsel who -- instead of working together to resolve a dispute or problem in customized, mutually acceptable fashion -- prematurely blurts out that he'll see me in court. This knee-jerk reaction usually is not a smart negotiation tactic. First, it reflects a lack of analytic forethought and a preponderance of emotional outburst, two aspects that make him a less than formidable adversary. Second, it essentially obliterates the possibility of our working together for the mutual benefit of our clients, who could achieve through settlement a result far better for both sides than any court would order (and because the vast majority of business litigations are settled before trial, it is a fair bet that we will end up in some sort of settlement negotiations). Third, over time, he will develop a reputation as a loose cannon, and a temperamental, petulant, unprofessional person to whom others would not wish to refer clients (perhaps counterintuitively, and perhaps not, opposing counsel often serve as a good referral source for future business because they have seen first-hand what you can do in the real-life trenches). And finally for present purposes, to the extent his own client learns of his reaction, the client may become dissatisfied with a lawyer she sees as out of control, putting his own emotional needs ahead of her best interests in the case.

Several elements of professionalism should be followed in all negotiations and business dealings:

(a) Legal rights represent the floor: The lawyer had no legal obligation to engage in settlement negotiations. But just because one has a legal right does not mean you need to exercise it in negotiations. Distinguish between legal rights and strategic negotiation. Be ready to go beyond what the basic legal rights "require" if it will be of benefit to do so. Rigid adherence to one side's perception of what is legally mandated behooves no one if the goal is to achieve a negotiated, mutually beneficial result.

(b) Reduce emotionalism -- lose the temper, yelling, and foul language: Sometimes it helps you feel better if you can "vent," but this rarely has an advantageous effect in negotiations. Yes, occasionally it may tend to intimidate; however, the same result likely could be achieved in those instances without the expletive-laden, high-decibel diatribe. Most often, it will cause a diminution in credibility and respect. And that's a price not worth paying for the occasional negotiation advantage it arguably might afford. Indeed, a prompt apology for an emotional outburst might gain more ground toward a good working relationship and achieving your negotiated goal than perpetuating the emotionalism might.

(c) Employ common courtesy and civility as a matter of routine: Make it a part of your natural way of dealing with others, and you will see how effective it is, both in terms of ultimate results and in your quality of life. Sure there are times when the need for some more forceful language and volume may be indicated, but this should be the exception rather than the rule. That makes it more impactful. And by refusing to respond in kind when someone personally offends you by words or actions, you refrain from lowering yourself to their level, and that in itself is a laudable goal, both so that the other person is not allowed to feel that he or she "got to you" as well as for the other reasons expressed above. Even the matter of responding to e-mails and telephone voicemail messages encompasses these tenets of common courtesy and civility -- prompt response by you encourages similar treatment by your counterpart. The more the enlightened use these means of conducting legal and business negotiations, the more likely their use will spread; and how much better it would be if this became the usual mode for the majority.

These simple principles have been brought home to me all the more since, over the past several years, in addition to my law practice I have been serving as a professional neutral arbitrator for two major arbitral forums. In this capacity, I conduct preliminary and evidentiary hearings in commercial cases within the jurisdiction of the forum (as an alternative to court) and I render awards that have much the same effect as judicial judgments. I have seen how the less civil party in a dispute often is endeavoring to overcompensate for unfavorable facts or law, whereas the more civil party in a dispute often feels no need to descend into incivility. Indeed, obstreperous counsel thus inadvertently is acknowledging implicitly that he or she likely has a less than legitimate case on the facts and/or law -- not something a lawyer seeks to communicate to the one who is judging the case and will issue the final determination.

David J. Abeshouse

Law Offices of David Abeshouse