This article was originally published in the Chicago Daily Law Bulletin and can be accessed here.

Negotiation is often described as an art, but in legal and business disputes, it is really a disciplined science. Successful negotiation requires a balance of psychology, legal acumen and strategic concessions.

But even seasoned professionals frequently fall into predictable traps that stall progress and deter favorable outcomes.

A negotiation rarely fails because the parties are too far apart on the numbers. More often, it is because one or both sides committed fundamental tactical errors.

Here are five negotiation mistakes and suggestions for how a good mediator can help parties avoid them and reach resolution.

Failing to fairly evaluate your case

The most common mistake begins before anyone sits down at the bargaining table. It is the failure to conduct a cold, clinical and objective evaluation of the case’s strengths and weaknesses.

Human nature predisposes us to confirmation bias. We fixate on the evidence that supports our narrative while minimizing or ignoring “bad facts.”

In a negotiation, this leads to an inflated sense of value. If you believe your case is worth $1 million because you’ve ignored troublesome issues, you will view a fair offer of $400,000 as an insult rather than an opportunity.

To avoid this, you must listen while your mediator performs a devil’s advocate review. What are the three things that could make you lose? If you were the opposing counsel, how would you dismantle your own argument? Failing to account for the other side doesn’t just make you look unprepared; it makes you appear immovable, which is the death knell of any settlement.

Not remaining open to resolution

Negotiation requires a willingness to be persuaded. Many negotiators enter the room with a “fortress mentality,” viewing any move from their original position as a sign of weakness.

True negotiation is a fluid process. If you enter the room with a fixed bottom line and refuse to adjust it even when new information is presented, you aren’t negotiating; you’re posturing.

Remaining open to resolution means listening more than talking. Be sure to listen to your mediator who has experience settling cases with unusual needs. In the caucusing process, the mediator can explore the interests that might never cross your mind.

It also means acknowledging valid points. Admitting the other side has a point on a specific issue builds credibility, making them more likely to concede to others.

If you close your mind to the possibility of a middle ground, you force the other side to choose between surrender and war. Most will choose the latter.

Focusing on winning instead of settling

In litigation, there is a distinction between winning and achieving a successful outcome. The “winning” mindset is fueled by ego and emotion. Winning seeks to punish the opponent or achieve a slam dunk verdict. The problem? The pursuit of a “win” often costs more than the win is worth. Winning the battle but losing the war is not really winning. Winning is putting money in your pocket if you are a plaintiff and avoiding a catastrophic outcome if you are a defendant.

A skilled mediator helps move negotiations along with reality checks. They may ask, “Does this settlement put your client in a better position than the uncertainty and expense of a trial?”

A settlement is a controlled outcome — parties mediating decide whether they settle or not. A trial is a roll of the dice in front of 12 strangers. When you prioritize “winning,” you lose the ability to manage risk.

Not knowing the facts and testimony

There is nothing that erodes your leverage faster than being corrected on a basic fact of the case. If you claim a witness said “X” during a deposition, and opposing counsel produces a transcript showing they said “Y,” your credibility evaporates instantly. From that moment on, every claim you make will be viewed with skepticism. Your mediator will read all submissions, and they will know your case. A good mediator will keep you honest.

Negotiation is a battle of information. You must have a granular command of the facts, the timeline and the paper trail: Walking into a negotiation without a mastery of the record is a mistake.

Failing to understand the relevant law

While facts provide the “what,” the law provides the “so what?” A negotiator might have all the facts on their side but fail to understand how the court will apply the law to those facts.

This mistake often manifests as relying on outdated case law or failing to recognize how specific legal outcomes have effects — for example, defeating summary judgment is great, but it doesn’t mean you will win the trial. Your mediator will see case law from both sides. It makes more sense to produce all relevant case law, even the cases that go against you. Put it all on the table and your mediator will be better able to help guide your negotiation.

Conclusion

Successful negotiators are not the loudest people in the room; they are the most prepared. Use your mediator to help facilitate the process and avoid these five mistakes. By being objective, open-minded, pragmatic, fact-focused and legally sound, you transform negotiation from a confrontation into a calculation.

A settlement is a sign that you were smart to reach a conclusion that allows everyone to move forward with satisfaction.

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Hon. Patrick J. Sherlock, (Ret.) has over 35 years of experience in litigation matters, garnering a reputation for his work ethic, thoughtfulness and inventive approach to resolving commercial and complex tort disputes. While on the bench, Judge Sherlock presided over and settled many notable cases, including the first baby powder mesothelioma case in Illinois and a multi-billion dollar class action concerning shareholder rights. His rulings have been affirmed by more than 100 appellate court opinions.

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