Anyone who writes or talks about negotiation strategy eventually has to address Getting to Yes.  It’s the 800 pound gorilla in the negotiation field, and it has produced a vocabulary that, while occasionally jargony and unwieldy, is in constant use. Far more importantly, it contains some outstanding advice on how to negotiate in almost any context, even with difficult counterparties.

So, assuming that you’ve never read the book, what’s it about? Getting to Yes advocates a method known as "principled negotiation." As the authors describe it, principled negotiation:

suggests that you look for mutual gains wherever possible, and that where your interests conflict, you should insist that the result be based on some fair standards independent of the will of either side. The method of principled negotiation is hard on the merits, soft on the people. It employs no tricks and no posturing.

In general, principled negotiation is an outstanding overall strategy, in no small part because it tends to work whether or not the other side uses it too. (And, for lawyers in particular, it has an added benefit. If you are continually referring to some fair, objective standard, then if the negotiation breaks down you are very well placed to defend your position in front of a mediator, arbitrator, or judge.)

In explaining this principle, Fisher & Ury present two primary insights that can help negotiators. Unfortunately, each also presents some specific problems in the class-action context:

BATNA – the "Best Alternative To Negotiated Agreement."

The reason you negotiate is to produce something better than the results you can obtain without negotiating. What are those results? What is the alternative? What is your BATNA–your Best Alternative To a Negotiated Agreement? That is the standard against which any proposed agreement should be measured. That is the only standard which can protect you both from accepting terms that are too unfavorable and from rejecting terms it would be in your interest to accept.

(Second emphasis added)  In business deals, the best alternative is often some agreement with someone else. In litigation, the best alternative to a negotiated agreement is litigation. And, more importantly, the best alternative for a defendant is the money it pays to the class and counsel, while plaintiff counsels’ best alternative is the fees they will collect. (This is what class-action scholars call the agency problem with class actions.) The calculus is a little different than what Fisher & Ury have in mind.

"Creating value." – This is Fisher & Ury’s other big insight. Their big example of it involves two children fighting over an orange:

[A]ll too often negotiators end up like the proverbial children who quarreled over an orange. After they finally agreed to divide the orange in half, the first child took one half, ate the fruit, and threw away the peel, while the other threw away the fruit and used the peel from the second half in baking a cake.

Leaving aside the fact that the authors’ kids bake a heck of a lot more than I did in my youth, this kind of creating value can work extremely well in business negotiations. By taking a step back, the two sides can often agree on a division that allows each to get more value out of an agreement than they might out of just splitting the pot in two.  And there are no shortage of attempts to "create value" in class action settlements as well.  The difficulty is that Rule 23 constrains some of the creativity lawyers might exercise. This is not a bad thing. The "orange" problem that class-action lawyers are trying to solve is that the defendant does not want to pay much, but class counsel want large fees. So "creating value" in the class action context often means giving the class members something that doesn’t cost much, but can be claimed as valuable enough to justify large attorneys’ fees. And those are the exact agreements most likely to draw objections.

Despite these issues, Getting to Yes is still the definitive book on negotiations, and much of the advice in it (from how to evaluate your best alternatives, to how to deal with more coercive tactics from the other side) is extremely valuable. Class-action lawyers just have to make sure that in following the book’s advice, they’re not running up against the specific strategic problems posed by complex litigation.