Negotiation is part of life: We do it all day, every day.
Negotiation is a method by which people settle differences. It is a process by which compromise or agreement is reached while avoiding argument and dispute.
In any disagreement, individuals understandably aim to achieve the best possible outcome for their position (or perhaps an organisation they represent). However, the principles of fairness, seeking mutual benefit and maintaining a relationship are the keys to a successful outcome.
James Irving, a Business Lawyer from Australia, mentioned this on Quora – “Negotiation is an art, and it is part of most lawyers’ work. Along with skills like writing, drafting documents, setting out logical arguments and so on, capability at negotiation is one of the tools most lawyers need to have in their toolkit. Negotiation features in lots of areas of law, including the settlement of disputes, and reaching terms of agreement for commercial transactions.
With your clients about project strategy and payment of fees. With the other side about contractual terms, offers and counteroffers. With colleagues about who will deliver certain tasks and by when. With your employer/employees about salary, benefits and progression.
Let’s take an example. You hire a lawyer to negotiate the terms of a rental agreement for a commercial property. The lease might say you will pay Rs. X per month, but also be liable for some dangerous equipment on the property. If the lawyer does their job properly, they won’t just think about arguing with the landlord to lower the rent, they will think what it will cost you to manage the equipment and what will happen to you financially if an accident occurs. The lawyer might say, “why don’t you offer to pay a bit extra but not be responsible for the equipment?”
The negotiation takes place in a wider process of assessment of facts and law and provision of advice. Part of the skill of negotiation is to understand that context and deal with it appropriately.”
In many business deals, the clients negotiate between themselves, decide on the important terms of the deal, and then turn the details over to the lawyers. In these situations, the lawyer’s role is to anticipate failure points and document what will happen in the worst case situations. Typically, one side will be looking to expand the consequences of failure.
Despite high – minded talk from Bar leaders and academicians, the economic realities of legal practice have been pushed client results to the forefront, resulting in an ideology and ethos centred on a lawyer’s total commitment to the client. In fact, many lawyer’s have become overly client – centric and now believe that loyalty to their clients id their ‘first and only’ responsibility. This belief causes problem that play out again and again in the legal profession. The tension between a commitment to the client and a commitment to broader interests in justice often comes to a head in negotiation realm where issues of honesty come to the force.
Most attorney negotiation ethics problems stem from a conflict between the lawyer’s obligation to the client and the honourable treatment of other negotiators. When lawyers negotiate, they rely on their values and beliefs about lawyering and the lawyer’s role in the negotiation process to make both conscious and unconscious strategy choices and moves. These views are shaped by two core tenets, also known as the lawyer’s standard philosophical map: first, that disputants (including negotiation counterparts) are adversaries where if one wins, the other must lose; second, that disputes are resolved only through the application of law, so that projected positive trial outcome provides bargaining leverage in a negotiation. As a result, lawyers tend to follow specific bargaining norms that resemble a form of advocacy – playing to win (or to not lose), sharing as little information as possible, and continuously demonstrating the strength of their positions.
Clients often complain that lawyers tank deals. There is a certain amount of truth in this complaint because the negotiation between the lawyers can become so competitive that they are unable to agree or compromise on sticking points. When lawyers are negotiating the details on behalf of a client, it becomes important to have constant communication with their client.
Although you might be expert in secured transactions, for example, you need to explain the risks and problems to your client so that you work as team in deciding what is important and what can be concealed.
The other aspect of negotiation is settling conflicts, especially lawsuits. Very few civil cases go to trial. The only civil trail lawyers that really gain significant trail experience are insurance defence lawyers. Even then, with rare exceptions, a defence lawyer might only try three or four cases a year. For plaintiff’s personal – injury lawyers, trying cases is unprofitable. Thus, the vast majority of personal – injury cases settle. The same is true in other types of civil litigation. Business cases almost always settle, although there are notable exceptions like the Samsung vs Apple case in 2012 when Apple obtained a billion dollar judgment against Samsung for patent infringement. Most family law cases also resolve through settlement.
The fact of the matter is that litigation is a sport of kings. Very few middle – class people and small businesses can afford the cost and risk of a lawsuit. It is why people buy liability insurance. Consequently, as a lawyer representing a client in a conflict or a dispute, you play a major role in negotiating towards resolution of the problem.
In disputes headed for litigation or in litigation, your goal is to mange the risk of loss if you are defending and to optimise gain if you are prosecuting. Thus, your role is much different in settling a case than in negotiating a business deal.
Lawyers generally take a leading role in negotiating settlements of disputes and claims. There are times when the client is actively involved in the negotiation process. In other cases, the client is passive and relies upon you to negotiate the best deal possible.
The most important thing is that clients make the final decision. And they do so only after being informed by the lawyer of the risks and benefits of the settlement.
- The Art of Negotiation and Mediation – A Wishbone, Funny Bone and A Backbone, Anuroop Omkar & Kritika Krishnamurthy
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