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Negotiation Tip: Work on your personal credibility to increase your negotiation success.

March 9, 2011

Your credibility with your opposition is critical for obtaining maximum negotiation success.

Whether your credibility (or lack of it) is the result of your past personal traits and practices or your reputation earned in your professional practice , everyone can and should work constantly to improve your score on this essential component of negotiation success.

Your credibility begins with your initial contact with your opposition and continues throughout your litigation and all efforts of resolution of issues, large and small. 

It begins again in mediation negotiations, as early as pre-mediation, extending into  opening statement through the crucial negotiation stages and into the structure of your final agreement and release.  If you are perceived by your opposition as not credible, you, and your client, will be penalized sometime during the mediation-negotiation process.  You may never know it, but the penalty will still be there.  It may be small or large.  It may be solely intangible or in some tangible form ranging from prolonged mediation to a lesser result that would have been available to outright mediation failure.

Credibility building (or augmenting) starts simply with your relationship with opposing counsel and, often, the party they represent.  It is earned, daily, with simple acts such as performing exactly what you say you will do when you say you will do it. 

Many lawyers learn the hard way that promising something you do not intend just to avoid the immediate issue is the early beginning of the long-term loss of your credibility.  Better lawyers learn to be honest with what they can do and when and readily admit when they cannot. 

Honesty, as your mother undoubtedly told you, really is the best policy for almost everything and certainly your practice.  And, as my mother repeatedly reminded me , “it takes a lifetime to build a reputation, but only a moment to lose it”.

Start your credibility for your next mediation early by actively cooperating with your opposition during pre-mediation.  Give your opposition fully that to which they are entitled and timely.   Try speaking with your opposing counsel directly rather than through your staff or emails.  Lighten up a bit on your advocacy.  Move the focus from unrelated personal matters to simple practical issues of finding common ground on the present task.

Mediation opening statement is another early opportunity to gain more credibility.  Many attorneys are less than precise on their opening statements, and in their advocacy mis-state facts, law or worse, substitute hyperbole instead of reason.  The opposition (and the parties) will take immediate note of those miscues and quickly turn such mis-positions against you as either intentionally mis-stating fact or law or worse, uninformed.  Such miscues cause instant loss of credibility due solely to this simple lack of care or preparation.

During mediation, credibility can be also be obtained almost instantly with the judicious use of admissions.  Many attorneys forget that a significant benefit of mediation is confidentiality.  A confidential session is the perfect time to leave advocacy behind and objectively examine how the opposition sees your position.  

Simply admitting a known weakness that is strongly held by the opposition can result in instant credibility.  At the worst, it adds to the reasonableness of the rest of your position.  Admissions can come in your opening or at any time in negotiation, directly or through your mediator.  But admitting points you know objectively you are almost sure to lose can be a real tour-de-force when used judiciously.

Credibility can also be gained simply by your opening demand/offer for your position as you begin negotiation.  Is it really necessary to begin with a position that is so unreasonable that it is either insulting or a total waste of time?

Of, if you simply must start your negotiation high (or low) for reasons described in other articles as “the process”, you can still regain the high ground of credibility with the very next move by going directly to a realistic position.

Another important tool of credibility is clarity of your reasoning.  Rather than talking vaguely about other comparable cases, why not produce the points you are attempting to make by submitting copies to your opposition?  Chances are your opposition has done their homework, but may have missed what you have found.

And the use of a copy of the actual verdict form that likely will be used in your case should negotiation or mediations fail is invaluable in demonstrating precisely why your present position is a bargain compared to the future trial outcome.  Your opposing counsel may be very familiar with the form, but often the opposing party has never considered exactly what the finder of fact will be using.

Concessions can be another form of reasonableness.   It is well-known that “the devil is in the details”.  Before wrecking an otherwise profitable line of negotiation with minutiae that likely is of no real consequence to the central theme of resolution, always try to consider just how important details are to the larger picture.  More often than not you will find that there are few details to a resolution that are worth losing the resolution over.

Credibility is a lifetime endeavor.  It is never too late to start.  Or, restart, if necessary.

It is much easier to negotiate with one you trust, with one who is credible to you or who has proven to be credible in the past.  Work now on establishing your credibility early for your later payoff at negotiation in mediation or even during trial.  After all, we all know that negotiation always continues until the jury knocks on the door!

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