When you’re involved in negotiations, it is helpful not to fall into the trap of becoming defensive about your client, the facts of the case or your legal approach. Becoming defensive will be counter-productive to the success of your negotiations. In a negotiation, issues need to be moved forward and becoming defensive will only force you to dwell on the past. Attaining a settlement is all about right now and the future.

If you start conversing defensively during a negotiation take a mental time out, suggests Mark Goulston in an article in the Harvard Business Review. If the other party or opposing counsel makes a statement which makes you want to go on the defense, Goulston suggests taking a “three strikes and you’re in” approach.

  1. Think about the first thing you would like to say or do but don’t do or say that. Take a deep breath instead of becoming defensive.
  2. Think of the second thing you want to say or do and don’t do or say that either. Take a second breath instead because you will most likely feel the need to retaliate in some way and escalate the confrontation.
  3. Think of the third thing you want to say or do and then say or do that.  At this point, you are past defending yourself or seeking revenge for the statement that was previously made. With a calmer attitude towards the opposing party, your chances of attaining a solution are more likely.

It is beneficial not to become defensive because your response will possibly cause the opposing party to become defensive as well. Instead, look for ways to communicate which are based on finding a solution that will benefit both sides as well as create a more collaborative and cooperative environment.

How should you respond? Unless what has been said is false or unrealistic, Goulston suggests being a “plusser” by listening to the other party and building on it. Ask the other side to explain or say more about an issue they emphasized. Responding in this manner will allow you to have some time to think, the other party will feel listened to and may be disarmed by your approach. Goulston also suggests a “yes and” not a “yes but” response. The use of “but” could make the other side feel disregarded while “and” validates their statement.

If you genuinely find yourself and your client under attack try a “controlled confrontation.”

  • Pause and count to three. This way the conversation won’t escalate. Reacting in this way may also make the other side a slightly nervous because you’re not taking the bait. They may not know how to react.
  • Look at them squarely, calmly and firmly in the eye and tell them you don’t want to say anything to make the situation worse. Express to them that they sound very frustrated and ask what they would like you to do to alleviate their frustration. If it’s fair and reasonable response, you may be able to do it, if not, something else will need to be done.
  • Be quiet, let them respond and if their proposal isn’t fair or reasonable tell them you don’t understand how that will be beneficial for everyone. The opposing party needs to explain how it will, or both sides need to come up with an alternate solution.

By not counter-attacking, staying calm and standing up for a resolution that’s fair and reasonable for both sides you’re standing up for what’s right in a way that’s neither defensive nor provocative, and it may ultimately be effective and productive in your negotiations.

Steve Mehta is a professional full-time mediator who specializes in mediating complex and emotional cases. A leading Los Angeles mediator, Mr. Mehta has been repeatedly selected as a Super Lawyer in mediation and is highly regarded by both sides to mediation. To schedule mediations, please visit SteveMehta.com