No matter who you are, we all negotiate on a daily basis — whether that is to secure the best price on produce at the farmers' market or to work out when you will visit family during the holidays.

Alina Ahmed

Attorneys have both the pleasure and challenge of negotiating as representatives on behalf of their clients. Below are some helpful strategies for navigating settlement negotiations with opposing counsel.

Know your strengths and weaknesses

Identifying your strengths and weaknesses will help prepare you for a negotiation. For example, has the PQME said there is a significant amount of apportionment to a prior injury? Or to use a different example, does the applicant lack substantial medical evidence to prove up their claim?

If so, these are examples of persuasive facts that can help an applicants' attorney decide whether settlement is in the client’s best interest.

There is a significant difference between presenting the two following offers:

• Defendant is willing to offer $25,000 for a compromise and release.
• Defendant is willing to offer $25,000 for a compromise and release; the claim is accepted. The primary treating physician’s indication is that the burn on applicant's left arm has fully healed. A voucher is not owed because applicant has continued to work for the employer.

The first offer is conclusory and doesn’t really explain its basis. The second offer gives an applicants' attorney some facts to relay to the client, which can help make the job easier, too.

As with anything, it is helpful to know your case’s worth and to be able to provide evidence that supports your position.

Whether to make the first offer

Your opening offer acts as a powerful psychological anchor in a negotiation. It carries a lot of weight. Your opening represents the most you can (usually) hope to get. 

— The Truth About Negotiation, by Leigh Thompson

Many people may shy away from making the first offer for fear of giving away too much information too early. However, author Leigh Thompson’s research has shown that negotiators are not harmed by making the first offer. Instead, Thompson notes that those who make the first offer tend to do well in negotiations.

The party who makes the first offer likely has a compelling analysis of the case's strengths and weaknesses and is able to articulate to the other side the reasoning for the offer. Additionally, if a defendant is able to “anchor” parties to a lower settlement value by presenting the first offer, that could cause the applicant to refrain from making a demand that is excessively higher than the offer.

Additionally, making the first offer communicates to the other side that you are willing to come to the table to resolve issues. Presenting the opening settlement offer applies pressure on the other side to also come to the table to get the job done.

Play the game, not the player

Have you ever had to negotiate with a particularly difficult individual? As we all know, sometimes attorneys are less than amicable.

On one occasion, I even received an email from an opposing counsel that said, “You should eat and get some sleep.” He was, unfortunately, not being as considerate as it sounds.

With these individuals, you may find difficulty in offering any concessions when negotiating settlement. However, an effective strategy that combats this dilemma is to continuously focus on arguing the issues and merits of the case rather than with the person.

Being kind and cordial with your opposing counsel allows parties to cooperatively work together to obtain a settlement. This is especially important, as the pool of workers' compensation attorneys is not that large, and it is likely that you will face opposing counsel multiple times over years of practice. If you damage the relationship when trying to settle one case, there is a chance that in another case, an opposing counsel will be reluctant to negotiate in good faith.

Know your audience

There is an advantage to knowing how opposing counsel handles cases. Is he interested in settlement, or is he prone to litigating every issue to the fullest extent? Either way, having experience with his personality and style can encourage successful negotiations.

For example, I have worked with one attorney who is fair and usually provides a clear supporting breakdown of how he and applicant reached their settlement demand figure. Overall, his settlement demands appear meritorious, with only minimal range to negotiate down.

On the other hand, other attorneys will give a massive six-figure demand on five-figure cases without a supporting breakdown as to why that figure was reached. Applicants' attorneys issue these excessively high demands with the knowledge that most defendants will never accept them. Instead, these inflated demands are merely an effort to “anchor” the defendant and move the eventual settlement midpoint to a higher elevation.

Knowing the opposing counsel’s strategy and tactics can provide an indication of whether he is willing to keep negotiating and settle for less or whether he has reached an amount that they are willing to settle for.

Never say never

How many times have you dealt with a party or heard someone say, “I will never settle for anything less than” a certain amount?

Using very strong language such as "always" or "never" can indicate positional bargaining, tying parties to positions instead of negotiating on the merits. In other words, use of this language undermines negotiations by distracting from the actual case itself.

A statement like “I always demand my client receive the supplemental job displacement voucher” is a position that may not always hold up.

What if the voucher is not owed? When facing an opposing counsel who uses always/never language to positionally bargain, break down the situation and attempt to reason with the individual that most situations have nuance and are not "always/never" situations.

You have tried all you can to settle. What's next?

Despite our best efforts, it’s common for parties to reach an impasse when discussing settlement.

If this happens, filing a declaration of readiness can help. It presumes that parties have made good faith efforts to resolve the dispute before seeking board involvement.

If you have truly done your best to communicate with the opposing side (i.e., emailed, called, written letters or negotiated as close as you could without either party being able to reach an agreement), it may be time to request Workers' Compensation Appeals Board assistance to move the claim toward resolution.

Fortunately, settlement is usually (but not always) in the best interest of all parties. When negotiation is approached thoughtfully, it can be a litigator's most effective tool in securing favorable outcomes for clients.

Alina Ahmed is an associate attorney at Bradford & Barthel’s Oakland location. This entry from Bradford & Barthel's blog appears with permission.