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Initiating Bargaining Interactions

By Charles B. Craver

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I am amazed how often lawyers and business persons tell me about their hesitancy to initiate negotiation encounters with others, because they are afraid that such conduct will be perceived as a sign of weakness. They prefer to induce others to commence such discussions. When I mediate employment law cases, the parties frequently show up at the scheduled sessions without having had any prior substantive exchanges with each other relating to their claims. More senior attorneys recall times when it was considered inappropriate to directly institute settlement discussions. This reluctance is entirely misplaced in the current legal world. Only 1.4 percent of federal court civil suits are actually resolved through adjudications. Some are dismissed and withdrawn, but the vast majority are resolved through settlement negotiations. In most state courts, only five to ten percent of civil claims go to trial.

Representatives contemplating civil actions should not hesitate to contact the opposing parties or their attorneys to indicate that they may file law suits. They can do this by telephone or through written demand statements setting forth the bases for their claims and indicating what their clients wish to obtain. Some lawyers prefer to prepare detailed demand letters, while others prefer to simply file formal complaints. Legal representative considering formal legal actions should appreciate the fact that as soon as law suits are filed, responding parties almost always deny most allegations and begin to prepare to defend themselves. As a result, it can be beneficial to prepare the formal complaints, but to send copies to defendants without formally filing them in court. Claimant representatives can indicate that they would like to discuss possible settlement options, and will formally file these complaints if the other side does not reply quickly. In many instances, the parties can begin their talks and achieve settlement agreements without the formal complaints ever having to be filed. If opposing parties do not respond or the settlement talks do not proceed appropriately, the complaints can be filed.

Individuals with claims against others should not hesitate to contact them to indicate what they require if litigation is to be avoided. They should carefully weigh the merits of their claims and the likely outcomes if judicial or arbitral proceedings are conducted, and request settlement terms they can logically explain. Many parties being threatened with law suits are happy to participate in settlement discussions to avoid the costs and publicity associated with the litigation process. If they can work with claimant representatives to achieve mutually acceptable resolutions, they are pleased to do so.

Initiating Bargaining Interactions By Charles B. Craver


Copyright © 2013 Charles B. Craver
Copyright ©   2013  The Negotiator Magazine
The Negotiator Magazine  May 2013