The Art of Negotiation and Seduction

A good litigator is a silent assassin in seeking settlement but a battle field major when court is the only means to an end.  A good litigator, by employing charm and seduction, will keep costs minimal and the timescales of Court a statistic for someone else’s argument.

Ezra Smith
Ezra Smith

5 months in to my litigation seat without even so much as a sniff of mediation.  It seems strangely fitting that almost simultaneous with the Ministry of Justice publishing less than appealing (no pun intended) statistics revealing that, on average, hearings for large claims (over £5,000) took place 57 weeks after the claim was made, I was invited to attend my first settlement meeting.

There’s a lot to be said for the art of professional seduction and never have I seen it so perfectly performed than Monday morning on hostile ground at ‘the other side’s’ offices.  With client in tow, tactics had been discussed in the cab journey en route – who would say what; the importance of dispassionate argument and, vitally, the no-room-for-movement settlement figure.

We walked into the meeting room a mere 10 minutes late, the game had begun.  Pleasantries and introductions dealt with, it was time to get down to business.  We listened as our client’s counterpart aired his grievances.  We heard of personality clashes, attitude problems and finally, alleged negligence.  We responded with subtle charm and respect.  We appreciated that clearly offence had been caused, though not intended.  We understood the view that initial complaints could have been dealt with better, but we disagreed – there was a strict complaints procedure and it had been followed to the dot.  We categorically denied any negligence whatsoever and we explained why.

The facts almost spoke for themselves and it was the gentle delivery of those facts that could not help but have the other side doubting the strength of their own case.   I was frantically taking a detailed note in awe of the performance taking place before my eyes.

With adept precision, without skipping a beat, we reminded the other side that we were there not to discuss strengths and weaknesses but to bring an end to matters without incurring further avoidable costs and wasted time.

Seduced by the gentle delivery of our case our client’s opposite number focused and sought confirmation that our attending client had the required authority to draw a line under the matter there and then.  A nod of affirmation with a reassuring smile did more than a mono-syllabic verbal reply ever could.

After having been hushed to silence twice by their client, the legal team on the opposite side of the table requested 5 minutes.  We agreed of course, offering 10 or 15 minutes if they preferred – we were reasonable as well as obliging.

At the break my supervisor explained her surprise at the ease with which she had been allowed to take control of the meeting.  She remarked how it seemed as though our client’s counterpart wanted to hear from her more than his own team.  She was right.  This was going to settle, and settle on our terms.  She was performing her role with frightening subtlety.

On their return it was our turn to be quiet and listen.  We had marched on the opposition prior to the break and it was our turn to take some shots.  But the shots were shrouded with aggression and often wide of the mark.

The meeting came to an end with settlement near but not achieved.  The foundations had been laid however, and the leader of the opposition seduced.  It settled within the week and largely on our terms.  Our client was ecstatic – we had settled for tens of thousands of pounds less than Counsel had advised.  Result.

Ezra Smith, trainee, Howard Kennedy