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Photo by Getty Images/iStockphotoI’ve seldom seen an employer settle a wrongful dismissal claim because of a brilliant legal argument.Subscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman, and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.Subscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.Create an account or sign in to continue with your reading experience.Access articles from across Canada with one account.Share your thoughts and join the conversation in the comments.Enjoy additional articles per month.Get email updates from your favourite authors.Create an account or sign in to continue with your reading experience.Access articles from across Canada with one accountShare your thoughts and join the conversation in the commentsEnjoy additional articles per monthGet email updates from your favourite authorsSign In or Create an AccountorThat’s not because the law doesn’t matter. It does. The legal merits establish the range within which a settlement is likely to occur.But they rarely determine whether a settlement is reached.The decisive conversation usually begins after everyone has left the room.The CEO turns to the head of HR and asks, “Can we really put this behind us?”FP Work touches on HR strategy, labour economics, office culture, technology and more.By signing up you consent to receive the above newsletter from Postmedia Network Inc.A welcome email is on its way. If you don't see it, please check your junk folder.The next issue of Work will soon be in your inbox.We encountered an issue signing you up. Please try againThe CFO asks, “What will it cost if we keep fighting?”General counsel wonders how the company’s witnesses will withstand cross-examination.Someone else asks the question that should have been asked before the meeting even began: “What is the best business decision?”By then, the legal arguments have become only one factor among many.The best negotiators understand that every meeting has two audiences: the people sitting across from you, and the people they become once you’re no longer in the room.I learned that lesson early in my career.I represented an employer in a case that appeared destined for trial. The legal positions were entrenched, the negotiations had accomplished almost nothing, and everyone walked out convinced the dispute would continue for months.Then, after the meeting, the CEO asked a single question: “We are a family business. What will the consequences be for this 30-year employee’s family and his own mental health if this continues?”Everything changed.Within a couple of days, the case settled — not because the law had changed but because the internal conversation had. I’ve seen variations on that scene countless times over the past many years.The mistake many employers make is believing they are negotiating only with the lawyer sitting across the table.They are not.They are negotiating with everyone that the lawyer must later persuade. Today’s reasonable offer may be reconsidered after a conversation with a spouse, an accountant, a trusted friend or an advisor.Employee lawyers often have the same misconception and forget the reality. The HR executive has to convince the CEO. The CEO may need to convince the board. Outside counsel may need to convince the insurer.Every important employment negotiation has a second (or third) audience. The best negotiators understand this.They don’t just make persuasive arguments. They give the other side persuasive reasons to repeat those arguments after the meeting ends.That means avoiding the temptation to score points.If you humiliate the other side, you have given them every incentive to return to their colleagues and recommend continuing the fight.If, instead, you have provided them a practical business rationale for settling, you have just made it easier for them to advocate for your proposal.That’s one reason so many employment disputes don’t settle on legal principles alone.Employers often tell me they will win because the “facts” and the law are on their side. Then they spend another year in litigation, hundreds of thousands of dollars in legal fees and countless hours of executive time trying to prove it.They may very well win, but victory can be much more expensive than I ever imagined.Sometimes the better business decision is settlement.I have also represented dismissed executives who rejected offers that exceeded what a court might ultimately award because the employer ignored the one issue that truly mattered to them: their reputation.A carefully worded reference letter, an agreed announcement to staff or simply being treated with respect would have resolved the case.Instead, both sides dug in.The law determines the range of reasonable outcomes. People determine which outcome they choose.So, before your next employment negotiation ends, do not ask yourself whether you’ve made your strongest argument.Ask yourself a different question: When I leave this room, what conversation is most likely to follow?If you can’t answer that, you are not ready to leave the room.Howard Levitt is senior partner of Levitt LLP, leading his teams of labour lawyers in Ontario, Alberta and British Columbia. Howard has appeared in more Supreme Court employment law cases and provincial appeals than any lawyer in Canadian history. A bestselling author, he discusses current workplace issues on the podcast, At Work with Howard Levitt. Join the Conversation This website uses cookies to personalize your content (including ads), and allows us to analyze our traffic. Read more about cookies here. By continuing to use our site, you agree to our Terms of Use and Privacy Policy.