In the vast majority of cases, there are more options for settlement than meet the eye. Having more options on the table increases the likelihood of finding one that is mutually acceptable. This is your chance to get creative!
The key to finding more settlement options is to separate the creative process of coming up with options from the rational process of evaluating, rating, or criticizing them. Think of developing options as a two-step process:
First, go for quantity. Invent as many potential options as possible without prioritizing or evaluating them.
Then, go for quality. Evaluate the potential options and sift through them to find the right fit.
Here are some helpful techniques for inventing and then evaluating a wide range of settlement options:
Brainstorm Options. You can brainstorm options with your counterpart or separately with your client in preparation for the negotiation. Brainstorming with your counterpart is an opportunity for both sides to use your combined perspectives to come up with outcomes superior to what you could have generated on your own and may also help to move the negotiation forward by orienting both of you toward a common goal.
The golden rule in the brainstorming phase is that there should be no evaluation of the ideas whatsoever. Encourage and consider all options, even those that are far-fetched; they may eventually trigger an association to another idea that is more realistic or plausible. Explore as many options as possible, including unrelated options, i.e., options involving parties or issues with no necessary connection or relevance to the case. If there are other ongoing or potential disputes between the parties, look at the bigger picture for opportunities to resolve all litigation globally.
Evaluate Options. After exhausting the brainstorming process, turn toward eliminating options that aren’t viable and testing those that are most viable to determine how well they meet the requirements of both sides. There are several benchmarks against which to evaluate options, such as: How well do the options satisfy your client’s underlying interests? How superior are they to your client’s next-best alternatives? How well do they stand up to objective criteria?
Refine Options. As you evaluate the options, it’s useful to select those that are most promising and begin to refine them. Consider options that are similar to, or variations of, those that are most promising. Or create a hybrid option that merges the best aspects of two or more options.
For advice on negotiation and case settlement, turn to CEB’s California Civil Procedure Before Trial, chap 46. Also check out CEB’s program Overcoming Settlement Impasse, available On Demand.
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