Interest-Based Negotiation In Personal Injury Litigation

For anyone involved in negotiating settlements, I would recommend reading Getting to Yes: Negotiating Agreement Without Giving In by Roger Fisher and William L. Ury and Getting Past No: Negotiating in Difficult Situations by William L. Ury. In these seminal works on negotiation strategy, the authors lay the groundwork for interest-based negotiation.

According to Fisher and Ury, the starting point in any negotiation is understanding the parties’ interests. That is, the parties’ needs, desires, concerns, fears and aspirations. Interests differ from the parties’ positions which are tangible and typically take the form of dollars, cents, terms and conditions.

The question I pose is this: does interest-based negotiation have any place in the personal injury litigation context where negotiation can be driven by position? Indeed, it can be argued that factoring in the parties’ interests in a personal injury mediation is superfluous as the negotiation tends to focus on resolving issues for which an understanding of the parties’ interests may be unnecessary and may even create a roadblock to settlement. 

Take for example a situation where the parties have agreed on all of the issues but are unable to agree on exposure to a loss of income claim. One party’s position is that there is exposure to X dollars while the other party maintains that there is no exposure. Positional bargaining by the parties may dictate two potential outcomes; 1) a splitting of the difference between the parties where compromise is made in the middle of their stated positions or 2) both parties refusing to move from their stated positions on this issue. In this situation, is there any value added by utilizing interest-based negotiation? 

Simply stated, yes, maybe there is something that interest-based negotiation can add here. It may be that the party who believes that there is exposure to the loss of income claim seeks some form of intangible recognition of their post-accident financial change. This is the party’s interest and it helps understand why they see exposure. Rather than a lock-step compromise or further entrenching of positions, using this information may help achieve more of a win-win resolution to this particular claim. A resolution that takes into account the party’s desire for recognition. 

It may not always be the case that understanding a party’s interests is the key to resolving issues in the personal injury litigation context. However, a skilled negotiator should always be aware of how the parties’ define the issues, whether they are position based or interest based, and use this information to help achieve resolution.