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OK at Work, hosted by Offit Kurman attorneys Russell Berger and Sarah Sawyer, is a weekly podcast that discusses current events and legal issues impacting business owners. From updates on the ever-changing employment law landscape to the risks and benefits of integrating AI into your workplace, subscribe to stay up-to-date on issues and events that may impact you and your business.
Sarah Sawyer: Welcome to this week's OK
at Work with myself, Sarah Sawyer, my
colleague Russell Berger, both attorneys
at Offit Kurman, and today we are
talking about negotiations, generally
as it relates to pre-litigation and
when you're trying to resolve an issue.
So a lot of times before you go
straight to litigation and say, I'm
going to sue someone for breach a
contract, or we enforce a contract, or
any plethora of different things that
could mean that you're trying to seek a
resolution on in some type of conflict.
There might be pre-litigation, pre-op
option negotiations that you need to
go through to try to say, all right
can we resolve this in a way that is
maybe not, going through a full process
of having to fight it out, right?
But there's a lot of things to
consider in those pre-negotiations
and conversations and process.
It can be a really short process
or it can be a really long process.
It can be a little stressful, it can be
emotional, it can be really challenging.
I know Russell, you and I do a lot
of it obviously for our clients
so we're pretty used to it.
But for those who are not as used
to pre conflict or I guess it's, I
would call it pre conflict because
the conflict's already usually
happening, pre-litigation negotiations.
What should anyone be considering?
Russell Berger: Yeah.
Well, I think you've summed it up
well to say that it's a process.
I think it's, often like buying a car
is a negotiation and most people are not
too thrilled to go through that process.
They want the car at the end of the day
but they've gotta go through the process.
And this is a process and there'll be
ups and downs to it, and there's things
that create leverage and things that
you have to deal with along the way.
Now what I would say is a starting point
though is that there's no one size fits
all approach like that doesn't work.
I think there's, general concepts of,
Hey, we want to present the strongest case
that we have and we want to articulate
our position and we want to demonstrate
that we're willing to fight on this
if we don't get an acceptable deal.
Those are the kinds of things
that generally create leverage.
But how you do that when you do that,
what tactics you implement to express
that are all gonna be very case specific.
And, I like to think of it as, it's
obviously different than playing poker
against somebody, but it's similar in the
concepts of, on the one hand you have to
understand the cards that you're holding.
How strong am I approaching this?
What are my strengths,
what are my weaknesses?
What are my odds of success?
What are my likely outcomes?
But I also think it's important
to understand who you're
playing against across the
table and what are their biases?
What are they looking for?
What are their strengths and weaknesses?
Where do they leave us with
opportunities to create leverage?
And you take all those things and
throw 'em in the pot and knowing that
the more leverage we create, the more
likely we are to get a good result.
And you just have to play
all these pieces together.
So from a process standpoint,
step one is just gather up all
the ingredients and start figuring
out what you can make with them.
Sarah Sawyer: Yeah, and trying to
approach it objectively can often be
really challenging because I think when
we encounter folks at this stage in the
process they have certain feelings around
the way that things should play out, and
usually they're informed by the facts.
And by a lot of the factors
that you described, Russell,
that you wanna be considering.
But there is some feeling of how
to, you think things should play
out how you want them to, what's
just, and what's reasonable.
But you also have to layer
in, well, what's practical?
What makes sense?
What do I really want out of this?
Even if it's not a slam dunk
and it's exactly what I want.
Am I willing to accept something
less to be done with this and
not have to keep dealing with it?
And there's a lot of stages I
think for people to go through and
as part of that process as well.
Everyone's a little bit
different, obviously.
No one's the same as it relates
to how they might feel or handle
or approach something like this.
And sometimes people are ready
to be practical and logical
right from the start, and
sometimes it takes a little time.
And that's true of both sides.
So when you talk about thinking about
your own side and your own approach
and trying to be logical and zoom
out and really think it through,
but also do that for the other side.
And a lot of times our clients
will know the people on the other
side, obviously better than we do.
So I know that's something that I
will take into consideration with
clients is to say like, all right, well
you've done business with this person.
What approach do you
think they're gonna take?
What's their position gonna be?
What are the things that are
gonna be most important to them?
And sometimes the business owner
that we're working with has
the best perspective on that.
Russell Berger: Yeah.
And we talked about it a few
weeks ago when we talked about
cease and desist letters.
Does being aggressive back them down
or does it get them fired up and coming
after you even more I think, like I
said reading the other side is really
important as you decide what tactics to
implement and how you plan to get there.
I think it's also important to note
that, especially in a pre-litigation,
pre-suit negotiation context, that
you have to be okay with not settling
and not getting resolution there.
If you're desperate to get a
deal done, you will get one
done, but you'll pay more for it.
Just if you go into a car dealership and
say, I really gotta get a car this week.
My car just broke down.
I need something new that dealer's
gonna take advantage of you.
You want to be thoughtful about that and
also mindful that hey, if I can't get
a good enough deal, like I'm okay going
forward, I'm okay going to the next step.
There will be other opportunities
to revisit a negotiation and
possibly get a resolution.
Maybe what I need to do is further
this thing down the road and create
more leverage and, cause the other
side to feel some pressure that
causes them to come back to the table
and in more spirit of compromise
than they might be at the start.
Sarah Sawyer: Yeah, it's good to
be prepared to see how that would
look, what that would look like if it
played out, so that you're prepared
for that and comfortable with that.
Well, thank you, Russell.
We'll see you next time.
Russell Berger: Thanks, Sarah.