Friday, November 12, 2010

writing negotiation demand letters

An aspect of legal writing often overlooked is how to truly successfully draft a negotiation demand letter.  Now Carrie Sperling has filled the gap with her article on "Priming Legal Negotiations Through Written Demands".  Here's her abstract:

"Lawyers frequently start negotiations with a written demand. But legal scholars have not, until now, considered the demand letter part of the negotiation process. Negotiation theory focuses almost exclusively on face-to-face negotiations and incorporates research from psychology, economics, and other social sciences to explain lawyers’ and clients’ emotions and decisions. By contrast, legal writing texts give lawyers guidance about how to effectively write a demand letter, but this advice lacks any connection to the multi-disciplinary empirical research seen as so important in the negotiation context. This disconnect may serve as an impediment to more favorable negotiations. In fact, this untested advice about how to write demand letters could actually have the unwanted effect of causing protracted litigation and less favorable settlements.

"This article draws upon research in social psychology to demonstrate that demand letters deserve more attention and study. The words lawyers use to convey their demands can have powerful, lasting effects on the course and nature of negotiations because they almost certainly frame the issues, anchor a recipient’s perceptions, and prime the recipient’s goals and behaviors. If we are to fully understand what causes protracted, hostile litigation as opposed to cooperative negotiations and lasting resolutions, we must start by applying sound negotiation theory to the written demand."


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Even if the negotiation "demand" letter is written according to interest-based rather than position-based principles, I suggest losing the word "demand" which puts the author in an adversarial rather than a collaborative problem-solving state of mind. I'll post a mediation request letter on my blog today for anyone who would like to see an example of a letter appealing to party interests rather than one that's more like police pounding on the door at 3 a.m.

Posted by: Vickie Pynchon | Nov 15, 2010 4:32:47 AM

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