How To Negotiate
Usually, an employer will unilaterally draft the severance agreement and present it to the executive to sign. The executive then has the option to accept the terms of the agreement or to negotiate a better offer. It is often beneficial for the executive to attempt to achieve an enhanced package.
In depth negotiations with counsel can be costly, and often, an executive will first try to negotiate an enhanced package with his or her counsel in the background (using counsel for advice, but conducting the negotiation independently). This approach is less confrontational and may serve to maintain a better relationship with your employer/former employer. Also, many factors in such negotiations are personal or political rather than legal, in which case the executive may be better qualified to present the situation in a compelling fashion. If the executive chooses to negotiate him or herself, the choice of whom to negotiate with is of particular tactical importance. If possible, it is generally better for an executive to deal with a person in his or her management chain with whom there is a pre-existing relationship, than with a human resources representative who the executive does not know. If this approach of independent negotiation proves unfeasible, then the executive's lawyer can negotiate directly with the employer or the employer's counsel.
As in any negotiation, it is important to determine what leverage an executive has with the employer. This can include legal leverage, such as the threat of a law suit, or simply play on the desire of many company officials to be perceived as fair and reasonable in the eyes of others. The executive can also use a company's fear of bad publicity, guilt over having fired him or her, or friendship with high level officials in the company to his or her advantage. Such tactics are particularly useful when proposed provisions in the agreement will help the executive with little cost to the employer.