By John Lande
Part I described the “prison of fear” that keeps many lawyers and parties from negotiating early in a dispute. This Part describes how lawyers can initiate and conduct a “planned early negotiation” or “PEN.”
Lawyers should routinely do an “early case assessment” to analyze what procedure would be most appropriate. In some cases, it is clear from the outset that the parties need to engage in all-out adversarial litigation. But in most cases, both sides would be better off by cooperatively managing the case and considering negotiation at an early stage.
It can be especially important for lawyers to build confidence at the outset, when the parties may be especially afraid and distrustful. Lawyers should get to know each other by arranging a face-to-face meeting, if possible, perhaps over a meal. When they have personal connections, they are more likely to resolve problems that may arise.
Lawyers can reassure their clients that they have little to lose by exploring negotiation as they can stop the process at any time. If they proceed in litigation, they generally will not have lost much since they will generally exchange information that they would provide in litigation anyway.
Early in the case, lawyers can identify the information that each side needs to reasonably evaluate the matter. By voluntarily sharing information, they show that they are confident in their case and interested in negotiating a fair agreement. They can start by exchanging basic information that is clearly necessary and discoverable. After that, they can decide if specific additional information would be necessary.
Lawyers often need experts’ analyses both for negotiation and litigation. When appropriate, lawyers can avoid expensive and risky “battles of the experts” by hiring joint neutral experts instead of partisan experts for each side.
Lawyers can also help design multistep dispute resolution processes so that if they have problems with direct negotiation, they can use mediation and arrange for arbitration if they do not reach agreement within a specified period.
If parties do adjudicate the dispute, lawyers can narrow the issues to be argued, identify expert witnesses to be called, share exhibits, and generally inform each other of their plans. Lawyers can also commit to focus their arguments on the merits of the dispute and avoid tactics that unnecessarily aggravate the conflict.
This description is adapted from an article that will appear in a fall issue of Alternatives to the High Costs of Litigation, published by the CPR Institute. It is based on my book, “Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money” (ABA 2011). For more information about the book and to order it, click here. The book includes numerous practical forms on a CD for lawyers to use in their own practices.
John Lande is Director of the LLM Program in Dispute Resolution and Isidor Loeb Professor at the University of Missouri School of Law. He teaches courses on lawyering practice, non-binding methods of dispute resolution, and dispute system design.
He began mediating professionally in 1982 in California. He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison. He was a fellow in residence at the Program on Negotiation at Harvard Law School. Before coming to MU, he was on the faculty in the Dispute Resolution Department at Nova Southeastern University and he was Director of the Mediation Program and Assistant Professor at the University of Arkansas at Little Rock School of Law, where he supervised a child protection m