I have had the opportunity to negotiate with various government agencies for clients, and there is a difference between private industry and administrative agencies and how you should approach them. Researching Donner & Crowe’s “Lawyers Practical Guide to Negotiations, Second Edition” also provides many general considerations when negotiating with the government. In this column, I’ll share some thoughts and considerations on the subject to help you in your next negotiation with a government agency.
Managers often have an objective that is based on public policy rather than promoting monetary or other less principled goals. While some may say this about every interaction or negotiation, it is especially true that the first step in any negotiation with a management agency is to establish a good working relationship. Provided that the negotiator recognizes that social welfare must play a role in the process, it is usually possible for private entities to negotiate with administrative bodies in a friendly and cordial manner, without resorting to combative techniques.
When litigating against an administrative agency, it can often be difficult to work out a monetary settlement that resolves the matter due to the political nature of many administrative agendas. These agendas often carry more weight in the matter than mere monetary issues. In addition, private parties that have long-term interests in the resolution of a particular case may have a greater interest in the precedent, so it is even more important that their lawyers focus their attack on those aspects of the case that are governed by some aspect of the law. Public politics. Therefore, it can be very advantageous to negotiate rather than litigate with administrators.
In a brief summary of the advantages of good faith negotiation versus litigating with administrators by Peter H. Schuck, Yale Law School, as cited in the Attorney’s Practice Guide to Negotiations, 2nd. Edition “, includes reasons such as discovering solutions that fall between those extreme positions that will be affirmed by the parties to the litigation, exposing the true intensity of preferences rather than exaggerating those intensities, and stimulating the flow of information between the parties in Rather than restricting communication between parties, Schuck also recognizes the important advantage that since a negotiated solution is essentially voluntary and arises from a process that helps build consensus, it is likely to generate support from both parties for its implementation. Therefore, a cooperative philosophy, although of limited value in some contexts, is of particular importance in the context of administrative matters.
Sometimes it can be easy to get caught up in the confrontational process and forget how important it is to strive for a friendly and productive relationship with a manager or regulator. It is basic in human nature to be more receptive and trusting with someone you know and remember. It might be a good idea to remember the old cliché, “You can catch more flies with honey than with vinegar” the next time you have to deal with a government agency. This saying suggests that you can win people over to your side more easily through gentle persuasion and flattery than through hostile confrontation, and it can be especially true when it comes to government agencies.
Generally, the first contact with the agency by an attorney is through a letter informing the agency that the attorney has been retained. The letter must be firm and professional, and must indicate a willingness to reach an amicable solution. A harsh or threatening initial contact can cause the agency to develop an overly defensive attitude that can hinder or frustrate future negotiations. Establishing a favorable first impression with the agency and its attorneys can go a long way to a successful negotiation.
Establishing a relationship of mutual trust and respect between the parties creates a greater probability that an agreement will be reached. Also, any future relationship between the parties will be easier. To assist in this process, we must demonstrate our commitment to cooperation from the beginning. We must convince the agency, or the agency’s attorney, that not only your best interests are being considered, but those of the public interest as well. There are many ways to effectively appeal to the aesthetic needs of the agency, but one of the simplest is to remember the golden rule and treat the people you are dealing with the same way that you want to be treated. Respect and consideration are important in all negotiations, but especially when it comes to government agents who can often be the recipients of hostile communications about policies that they must enforce but did not enact. So you have to remember to maintain your commitment to cooperation throughout the negotiation process, even if it ends up being litigated.
While the tips in this column will help resolve most negotiations, there are situations where your client’s concerns may not be addressed and it will be necessary to consider filing a lawsuit. If you exhaust all other means of recourse and have been unable to negotiate a satisfactory settlement or obtain a favorable decision from an administrator, a lawsuit may be appropriate. This can also help in your negotiations and that is why I said earlier that you must maintain your commitment to cooperation even during litigation. Filing a lawsuit can be helpful in encouraging managers to reconsider their positions and will also allow the participation of attorneys who would not have otherwise been involved. If you’ve established a relationship of mutual trust, the lawsuit may just be a stepping stone to a settlement rather than an ugly adversary quagmire that they can sometimes turn into. The bottom line is that attorneys must always keep their clients’ goals in mind and recognize that negotiations with the government are often different from those in private industry, and therefore negotiation strategies and tactics must conform to the situation in question.
