Negotiation

Aims of Legal Negotiation

Negotiation is something we all carry out in our daily lives and is not the exclusive preserve of lawyers. For example, we make collective decisions about which restaurant to visit, or which movie to watch at the cinema. When we start a new job, we negotiate a salary and benefits package which are acceptable to both the employer and ourselves. In many parts of the world, bartering or bargaining is still a common way of buying or selling goods.

Try it yourself! Imagine two or three different scenarios when you have recently used negotiation. What were your primary aims in negotiating in each situation?

In a legal context, the key aims of negotiation are to:

• Arrive at a compromise in settling a dispute in a way which is most beneficial to the client.
• Achieve the best possible outcome for the client without needing to resort to litigation.
• Obtain enough information from the other party to reach a potential solution.

Top tips:

• Negotiation can take place between more than two parties.
• In some ways, negotiation is like a game of chess: every move counts. As we can see from the protracted problems in Darfur, even in international crisis situations, with huge budgets and the full weight of the United Nations, there can still be challenges to negotiating effective solutions.
• Negotiation is a voluntary exercise. Every party has the right to walk away from the negotiation table, or to refuse to negotiate in the first place.

Ethical Considerations

A lawyer must always act ethically in negotiations. However, there is much room for debate as to where and how lines should be drawn. For example, a lawyer should never lie but is not obliged to volunteer information which may adversely affect his or her case.

Research shows that most people see themselves as more ethical than the next person, and can often justify their own questionable behaviour.

Top tip: You can read more about Conduct and Ethics in Negotiation under the English Legal System in this article from The Negotiator magazine.

Forms of Negotiation

Scroll down to read about the two main forms of negotiation, or click on a term to jump to that section.

• Competitive negotiation
• Integrative negotiation

Top tip: There is no universal terminology in relation to negotiation. Different writers use different expressions to refer to the same things. It is your ability to negotiate that is crucial, not how other people describe the theories behind negotiation.

Competitive negotiation

This form of negotiation can also be called positional, distributive, assertive or aggressive negotiation.

If you have no intention or need to preserve an amicable relationship with the opposing party, then your approach is competitive. Your aim is simply to beat the opposition, to make maximum gain for your client at the expense of the other party. In competitive negotiations each party often has a pre-determined position which they are not prepared to move from.

Try it yourself! Identify three potential advantages and three disadvantages of taking an entirely competitive approach to negotiation. Check out the answers here.

Integrative negotiation

This form of negotiation can also be described as cooperative, friendly, or conciliatory negotiation.

If both parties aim to reach a mutually beneficial outcome, then the approach is integrative. Here, parties tend to take a more amicable approach to the negotiating table, with the aim of achieving a compromise result which works for both sides.

Try it yourself! Identify three potential advantages and three disadvantages of taking an entirely integrative approach to negotiation. Check out the answers here.

Top tip: These two positions are not necessarily mutually exclusive. Quite often negotiators assume a position which lies somewhere between them, ranging from highly aggressive to highly conciliatory.

Negotiation Styles

We all have our own natural negotiating style, and your behaviour will differ in different situations. You should recognise and appreciate your own natural style but be prepared to change it when negotiating on a client’s behalf. The best negotiators can shift from one approach to another depending on circumstances.

Try it yourself! Try these two online quizzes to identify your own negotiating style:

• Edinburgh Business School negotiation quiz
• Everyone Negotiates negotiation style test

Do you agree with the feedback provided? How could you improve your approach to negotiation?

The main different types of negotiator can be classified as:

• Competitive — you have an assertive approach and are determined to win at all costs.
• Avoiding — you are keen to avoid conflict and do not worry about the details as they will sort themselves out in the end.
• Cooperative — you are concerned about the other party’s interests and want to get the best deal for everyone by working closely with them.
• Collaborative — you want to get the best deal for everyone and work closely with colleagues on the same side, for example fellow co-defendants.
• Principled — you have certain principles which you are not prepared to compromise at any cost.
• Accommodating — you build effective relationships and are very sensitive to the other party’s needs.
• Compromising — you want to appear fair and reasonable and are quick to compromise.

Try it yourself! Consider each of the negotiator types listed above. What are the potential disadvantages for each? Check out the answers here.

Stages of Negotiation

Scroll down to read through the different stages of negotiation or click on a link to jump to that section.

• Preparation
• Exchanging information
• The negotiation

Preparation

Since every move counts, it is vital that you are well prepared for any negotiation. Good preparation involves spending time considering several different aspects:

• The law
• Your client
• Strengths and weaknesses
• Getting to yes
• Planning the negotiation

The law

You should have a thorough knowledge of the facts of the dispute, the law, and the procedures relevant to the particular case. For example, for a personal injury matter, you should be familiar with the concept of the quantum of damages. Without a firm grasp of the legal issues, you will struggle to control the negotiation.

Your client

Legal preparation should not be the primary focus of your time; you can negotiate without knowing every intricacy of the law. It is much more important to gain a firm grasp of the facts and an understanding of your client’s objectives and interests. Ask yourself:

• Are they seeking monetary compensation, or for the situation to be put right?
• Do they have a required timescale for the negotiation?
• Is there a minimum position below which they are not prepared to go?
• Is that minimum position realistic?
• Will they consider alternative options?

Top tip: If necessary, you should correct a client’s unrealistic expectations at the outset, otherwise a settlement may never be reached.

Strengths and weaknesses

Know the strengths and weaknesses of your case, and those of the opposing party. It may be that due to a previous bad experience, the other party would prefer to avoid publicity at all costs, so would be prepared to settle for less monetarily. In exploiting such strengths and weaknesses, you should always act ethically.

Getting to yes

One of the best known publications on negotiation is Fisher and Ury’s book, Getting to Yes. Read the Conflict Research Consortium’s summary.

Following Fisher and Ury’s approach, you should consider all the facts of your case and draw up a summary of possible outcomes. These questions may help:

• Will you definitely win if the case proceeded to court? If the answer is yes, then maybe you should not be negotiating in the first place.
• If you are not certain of winning in court, what is the best possible negotiated outcome for your client?
• What is the best outcome for your client if negotiation breaks down or ends without agreement? This is known as the Best Alternative To a Negotiated Agreement (or BATNA).
• What is the worst negotiated outcome for your client? This is the ‘bottom line’ your client will settle for.
• What is the absolute worst case scenario for your client? This is known as the Worst Alternative To a Negotiated Agreement (or WATNA).

Planning the negotiation

You should spend some time putting together a plan for the negotiation. It could include a:

• timeline of what you will do when
• list of issues you need to raise
• preferred order in which to raise them
• best and worst case scenario for each issue

There are various schools of thought as how best to set out your agenda, including:

• Getting the most important issues for your client discussed at the outset. These ‘non-negotiables’ are those outcomes which, if not achieved, may make a settlement impossible.
• Starting with the least contentious issues so you can get the negotiations off to a good, agreeable, start.
• Dealing with the most complicated issues first so you can get them out of the way while everyone is still fresh.

Top tip: Be prepared to be flexible with your plan, as things may not always proceed as you want them to.

Exchanging information

When speaking to your client about their expectations, always remember to ask not just what they want, but why they want it. This is well-illustrated by a powerful example from Finch and Fafinski’s Legal Skills book. Imagine the case of two brothers fighting over the last remaining orange in the house. Desperate to stop the quarrel, their mother grabs the orange, cuts it in two and gives one half to each child. She viewed this as the ideal compromise and a quick solution. However, if she had asked why they wanted the orange, she would have learnt that one needed the juice for a home economics class while the other brother wanted the peel for his art project. She could therefore have satisfied the needs of both brothers without needing to compromise.

Top tips:

• Negotiation can only happen if people communicate. Communication is a two-way process. Do not be afraid to ask questions in order to gather information.
• Do not forget to listen. You already know your position. What you need is to find out as much as you can about the other party’s position. The cheapest concession you could make to the other party might be to let them know their points have been listened to and heard.
• Information from the other side might actually help you to reach a settlement.

The negotiation

Scroll down to read some tips for each of the different stages of a negotiation or click on a link to jump to that section.

• At the start
• In the negotiation
• Closing

At the start

Top tips:

• Start with the premise that everything is negotiable. At the end of the day, the ultimate aim is to achieve a compromise which is acceptable to every party so you should work towards a range of outcomes.
• Try to establish a good rapport at the outset. Introduce yourself and the party you are representing and remember that you only get one chance to make a first impression. If necessary, set any ground rules before you get into the negotiation itself, then lay down the factual basis of the negotiation. At this stage it is best to avoid lengthy or contentious issues.
• Use your negotiation plan to set out the order in which you wish to proceed.
• If the other side disagree with your agenda, you might have to negotiate the agenda itself. This is sometimes called a ‘negotiation within a negotiation’. Do not spend too much time on this as you are not actually dealing with the issues. And remember that the tone you employ in the ‘negotiation within a negotiation’ will carry through to the actual negotiation itself.

In the negotiation

Top tips:

• Back up your statements with reasons. For example, you should explain why it is important to your client to achieve a specific outcome at this stage, or why you think it would be to everyone’s advantage if such a position was agreed.
• Offer solutions to stalemates. For example, if the other party is not prepared to accept your client’s valuation of a property, you could suggest getting an independent third party to value it rather than just arguing over the valuation.
• If you find yourself in a stalemate, it might be useful to move on to another matter and revisit the issue later. Resolving another matter might even provide an unexpected solution to the stalemate.
• Do not make lots of ‘all or nothing’ demands. If you give yourself no scope to negotiate, then you will reach repeated stalemates if the other party refuses to give in to your position.
• If you have been negotiating for a long time, and relationships are becoming strained, take a break. Even a ten minute break can give everyone a chance to ‘cool down’, get some refreshment, discuss matters in private and come back to the negotiation with fresh perspectives.

Closing

Top tips:

• Consider bringing negotiations to a close at regular intervals. Ask yourself how much more you can realistically achieve while considering the costs of time, money, and energy.
• Do not continue negotiating simply for the sake of filling the time allotted to it.
• Summarise the outcomes from each point of the agenda, emphasising what each party has agreed and highlighting issues which require further consultation.
• Some points may still need your client’s approval. Make sure you state whether you have the authority to agree those points, or whether the decision is pending your client’s final say so.

Try it yourself! Get together with another student and enter a team in The Negotiation Competition.

Top 10 Tips for Negotiation Success

1. Respect the negotiation process and give it your full attention.
2. Remember that negotiation is a two-way process. You only ever know half the story.
3. Ask questions to help you build up a picture of the issues from your client and the other party.
4. Read people’s body language as well as listening to what they say.
5. Good preparation is essential for effective negotiation. Research the law, understand the issue, be clear on your client’s objectives and construct a plan.
6. Hold firm to your principles, but only if those principles can be objectively defended.
7. Do not let yourself be intimidated by a particularly aggressive negotiator. They are only doing their job.
8. Be prepared to compromise but stay consistent.
9. Be prepared to walk away if the deal is unacceptable.
10. Reflect critically on the process and outcomes so you can learn from the experience.

Useful Links

Conduct and Ethics in Negotiation under the English Legal System from The Negotiator
http://www.negotiatormagazine.com/article265_1.html

International Negotiation Competition
http://www.abanet.org/lsd/competitions/negotiation/

Negotiation style test from Everyone Negotiates
http://www.everyonenegotiates.com/determineyournegotiatingstyle.htm

Negotiation quiz from Edinburgh Business School
http://www.ebsglobal.net/programmes/negotiation-quiz

Ten tips for an effective negotiation from Human Law
http://www.human-law.co.uk/Resource-Articles/10-Negotiating-Tips.aspx

The Negotiation Competition, sponsored by CEDR
http://www.cedr.com/training/competition/index.php

The Negotiator magazine
http://www.negotiatormagazine.com/

Training material from Australia’s Conflict Resolution Network
http://www.crnhq.org/pages.php?pID=7

Summary of William Ury’s Getting to Yes
http://www.colorado.edu/conflict/peace/example/fish7513.htm

Try It Yourself Answers

Competitive negotiation

Advantages of competitive negotiation include:

• If the other side is accommodating, you will get the resolution you want.
• The situation may be resolved quickly.
• Your action may force the other party into a situation where they must concede to your terms.

Disadvantages of competitive negotiation include:

• Tension and mistrust may be introduced into the negotiation.
• The other party may retaliate by taking an equally competitive or obstinate position.
• Settlement may be harder to reach if the other party does not appreciate your action.

Integrative negotiation

Advantages of integrative negotiation include:

• It is seen as conciliatory, therefore creating a good climate for negotiation.
• If the other party also takes an integrative approach, you are likely to find a compromise position that is mutually beneficial to both parties.
• It preserves the long-term working relationship between all parties.

Disadvantages of integrative negotiation include:

• You run the risk of giving too much away.
• Taking time to find the right compromises can be a long process.
• Your client may interpret your action as too ‘soft’.

Negotiation styles

The disadvantages of each negotiation style are summarized below.

Competitive — you have an assertive approach and are determined to win at all costs. Competitive negotiators can be so focused on winning that they miss an opportunity where both parties can gain. They are also likely to jeopardize any future relationship between the parties.

Avoiding — you are keen to avoid conflict and do not worry about the details as they will sort themselves out in the end. Avoiding negotiators can spend so long avoiding problems that they make the situation worse and may end up making quick concessions to end the discussions.

Cooperative — you are concerned about the other party’s interests and want to get the best deal for everyone. Cooperative negotiators can spend too much time trying to please everyone. Looking at every single option can draw out negotiations much longer than is necessary.

Collaborative — you want to get the best deal for everyone and work closely with colleagues on the same side, for example fellow co-defendants. Collaborative negotiators may jeopardize their own client’s position by trying to please others.

Principled — you have certain principles which you are not prepared to compromise at any cost. Principled negotiators can find themselves backed into a corner, limiting the number of possible outcomes.

Accommodating — you build effective relationships and are very sensitive to the other party’s needs. Accommodating negotiators can spend too much time worrying about the other party, leaving their client open to exploitation.

Compromising — you want to appear fair and reasonable and are quick to compromise. Compromising negotiators can spend too much time being ‘fair’ and not enough time working out possible solutions. If they are too quick to compromise, they may not get the best outcome for their client.