I have had the opportunity to negotiate with a number of government agencies for clients, and there is a difference between private industry and administrative agencies and how you should approach them. Research into the "Attorney's Practice Guide To Negotiations, 2nd Edition" by Donner & Crowe also provides many general considerations when negotiating with the government. In this column, I will share a few thoughts and considerations on the topic to assist you in your next negotiation with a government agency.
Administrators often have an objective that is grounded in public policy rather than in furthering 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 an administrative agency is to establish a good working relationship. As long as the negotiator acknowledges 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, cordial manner, without turning to combative techniques.
When litigating against an administrative agency, it can often be difficult to craft a monetary settlement which will resolve the matter due to the political nature of many administrative agendas. These agendas often have more weight in the matter than mere monetary matters. Additionally, private parties that have long-term stakes in the resolution of the particular case may have a stronger interest in precedent, making it all the more important that their attorneys focus their attack on those aspects of the case which are governed by some aspect of public policy. Therefore, it can be very advantageous to bargain rather than litigate with administrators.
In a short summary of advantages to good faith bargaining versus litigating with administrators by Peter H. Schuck, Yale Law School, as quoted in the Attorney's Practice Guide To Negotiations, 2nd. Edition," he includes such reasons as unearthing solutions lying between those extreme positions that will be asserted by the parties in litigation, exposing the true intensity of the preferences rather than exaggerating those intensities, and stimulating the flow of information between the parties rather than constricting interparty communication. Schuck also acknowledges the important advantage that because a bargained solution is essentially voluntary and emerges from a process that helps build consensus, it is likely to generate support by both parties for its implementation. Therefore, a cooperative philosophy, while limited in 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 adversarial process and forget how important it is to strive for a friendly, productive relationship with an administrator or regulator. It is basic human nature to be more receptive and trusting to 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 you can win people to your side more easily by gentle persuasion and flattery than by hostile confrontation, and it can be especially true when dealing with government agencies.
Usually, the first contact with the agency by an attorney is in the form of a letter informing the agency that the attorney has been retained. The letter should be firm and professional, and should indicate a willingness to reach an amicable solution. Harsh or threatening initial contact may cause the agency to develop an overly defensive attitude that may hamper or frustrate future negotiations. Establishing a favorable first impression with the agency and its counsel can go a long ways toward successful bargaining.
Establishing a relationship of mutual trust and respect between the parties creates a greater likelihood that a settlement will be reached. Additionally, any future relationship between the parties will be easier. To assist this process, we should demonstrate our commitment to cooperation from the outset. We must convince the agency, or the agency attorney, that not only are his or her best interests being considered, but those of public interest are as well. There are many ways of effectively appealing to the aesthetic needs of the agency, but one of the most simple is to remember the golden rule and treat those you are dealing with the same as you want to be treated. Respect and consideration go a long way in all negotiations, but especially when dealing with government agents that may often be the recipients of hostile communications over policies they are required to enforce but did not enact. One then must remember to keep their commitment to cooperation throughout the entire negotiation process, even if it ends up being litigated.
While the advice in this column will help most negotiations settle, there are situations when your client's concerns may not be addressed and it will be necessary to consider the possibility of filing suit. If you exhaust every other means of recourse, and you have been unable to negotiate a satisfactory settlement of obtain a favorable decision from an administrator, a lawsuit may be appropriate. This may also aid your negotiations and is why I stated above that you must keep your commitment to cooperation even during litigation. Filing suit can be useful to encourage administrators to rethink their positions and will also allow for the participation of counsel who may not otherwise have been involved. If you have established a relationship of mutual trust, the lawsuit may be only a stepping stone toward settlement rather than an ugly adversarial quagmire that they can sometimes become. The bottom line is that attorneys must always keep their client's goals in mind and recognize that negotiations with the government are often different from those with private industry and therefore negotiation strategies and tactics must conform to the situation at hand.
This article originally appeared in the March 2007 issue of The Montana Lawyer.