Negotiation skills are important for all practising lawyers. Lawyers in any situation need to explore all potential avenues for resolving disputes, including methods which do not involve litigation. This applies as much to everyday disputes, as to global crises.<\/p>\n\n\n\n
Kanda Karthigesu, Senior Legal Officer for the United Nations UNAMID Mission in Darfur, Sudan describes negotiation as playing a pivotal role in international peacekeeping efforts. Understanding what every party wants and trying to find a workable legal solution is far more important than knowing what the law currently states or the legal rights and wrongs of what has taken place. In situations like this, legal experts spend a large proportion of their time negotiating effective settlements rather than advising on law.<\/p>\n\n\n\n
From a domestic point of view, the vast majority of family and civil disputes are now resolved by alternative dispute resolution (ADR) methods \u2014 which include negotiation \u2014 rather than proceeding to court.<\/p>\n\n\n\n
The Bar Course\u00a0for barristers includes elements of negotiation and these skills also form part of trainee solicitors’ legal skills courses.<\/p>\n\n\n\n This resource will help you develop effective negotiation skills in a legal context.<\/p>\n\n\n\n Work through the material and exercises and you should be able to:<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Try it yourself!<\/em> Imagine two or three different scenarios when you have recently used negotiation. What were your primary aims in negotiating in each situation?<\/p>\n\n\n\n In a legal context, the key aims of negotiation are to:<\/p>\n\n\n\n Top tips:<\/em><\/p>\n\n\n\n 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.<\/p>\n\n\n\n Research shows that most people see themselves as more ethical than the next person, and can often justify their own questionable behaviour.<\/p>\n\n\n\n Top tip:<\/em> You can read more about Conduct and Ethics in Negotiation under the English Legal System in this article from The Negotiator<\/em><\/a> magazine.<\/p>\n\n\n\n Scroll down to read about the two main forms of negotiation, or click on a term to jump to that section.<\/p>\n\n\n\n Top tip:<\/em> 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.<\/p>\n\n\n\n This form of negotiation can also be called positional, distributive, assertive or aggressive negotiation.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Try it yourself!<\/em> Identify three potential advantages and three disadvantages of taking an entirely competitive approach to negotiation. Check out the answers here<\/a>.<\/p>\n\n\n\n This form of negotiation can also be described as cooperative, friendly, or conciliatory negotiation.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Try it yourself!<\/em> Identify three potential advantages and three disadvantages of taking an entirely integrative approach to negotiation. Check out the answers here<\/a>.<\/p>\n\n\n\n Top tip:<\/em> 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Try it yourself!<\/em> Try these two online quizzes to identify your own negotiating style:<\/p>\n\n\n\n Do you agree with the feedback provided? How could you improve your approach to negotiation?<\/p>\n\n\n\n The main different types of negotiator can be classified as:<\/p>\n\n\n\n Try it yourself!<\/em> Consider each of the negotiator types listed above. What are the potential disadvantages for each? Check out the answers here<\/a>.<\/p>\n\n\n\n Scroll down to read through the different stages of negotiation or click on a link to jump to that section.<\/p>\n\n\n\n Since every move counts, it is vital that you are well prepared for any negotiation. Good preparation involves spending time considering several different aspects:<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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:<\/p>\n\n\n\n Top tip:<\/em> If necessary, you should correct a client’s unrealistic expectations at the outset, otherwise a settlement may never be reached.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n One of the best known publications on negotiation is Fisher and Ury’s book, Getting to Yes<\/em>. Read the Conflict Research Consortium’s summary<\/a>.<\/p>\n\n\n\n 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:<\/p>\n\n\n\n You should spend some time putting together a plan for the negotiation. It could include a:<\/p>\n\n\n\n There are various schools of thought as how best to set out your agenda, including:<\/p>\n\n\n\n Top tip:<\/em> Be prepared to be flexible with your plan, as things may not always proceed as you want them to.<\/p>\n\n\n\n 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<\/em> 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.<\/p>\n\n\n\n Top tips:<\/em><\/p>\n\n\n\n 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.<\/p>\n\n\n\n Top tips:<\/em><\/p>\n\n\n\n Top tips:<\/em><\/p>\n\n\n\n Top tips:<\/em><\/p>\n\n\n\n Try it yourself!<\/em> Get together with another student and enter a team in The Negotiation Competition<\/a>.<\/p>\n\n\n\n Conduct and Ethics in Negotiation under the English Legal System from The Negotiator<\/em> International Negotiation Competition Negotiation style test from Everyone Negotiates Negotiation quiz from Edinburgh Business School Ten tips for an effective negotiation from Human Law The Negotiation Competition, sponsored by CEDR The Negotiator<\/em> magazine Training material from Australia’s Conflict Resolution Network Summary of William Ury’s Getting to Yes<\/em> Advantages of competitive negotiation include:<\/p>\n\n\n\n Disadvantages of competitive negotiation include:<\/p>\n\n\n\n Advantages of integrative negotiation include:<\/p>\n\n\n\n Disadvantages of integrative negotiation include:<\/p>\n\n\n\n The disadvantages of each negotiation style are summarized below.<\/p>\n\n\n\n Competitive<\/em> \u2014 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.<\/p>\n\n\n\n Avoiding<\/em> \u2014 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.<\/p>\n\n\n\n Cooperative<\/em> \u2014 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.<\/p>\n\n\n\n Collaborative<\/em> \u2014 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.<\/p>\n\n\n\n Principled<\/em> \u2014 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.<\/p>\n\n\n\n Accommodating<\/em> \u2014 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.<\/p>\n\n\n\n Compromising<\/em> \u2014 you want to appear fair and reasonable and are quick to compromise. Compromising negotiators can spend too much time being \u2018fair\u2019 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.<\/p>\n<\/div>\n<\/div>\n\n\n\n Negotiation skills are important for all practising lawyers. Lawyers in any situation need to explore all potential avenues for resolving disputes, including methods which do not involve litigation. This applies as much to everyday disputes, as to global crises. Kanda Karthigesu, Senior Legal Officer for the United Nations UNAMID Mission in Darfur, Sudan describes negotiation as playing […]<\/p>\n","protected":false},"author":2,"featured_media":0,"parent":40,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_acf_changed":false,"footnotes":""},"class_list":["post-60","page","type-page","status-publish","hentry"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/routledgelearning.com\/englishlegalsystem\/wp-json\/wp\/v2\/pages\/60","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/routledgelearning.com\/englishlegalsystem\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/routledgelearning.com\/englishlegalsystem\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/routledgelearning.com\/englishlegalsystem\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/routledgelearning.com\/englishlegalsystem\/wp-json\/wp\/v2\/comments?post=60"}],"version-history":[{"count":7,"href":"https:\/\/routledgelearning.com\/englishlegalsystem\/wp-json\/wp\/v2\/pages\/60\/revisions"}],"predecessor-version":[{"id":402,"href":"https:\/\/routledgelearning.com\/englishlegalsystem\/wp-json\/wp\/v2\/pages\/60\/revisions\/402"}],"up":[{"embeddable":true,"href":"https:\/\/routledgelearning.com\/englishlegalsystem\/wp-json\/wp\/v2\/pages\/40"}],"wp:attachment":[{"href":"https:\/\/routledgelearning.com\/englishlegalsystem\/wp-json\/wp\/v2\/media?parent=60"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}About this resource<\/summary>\n
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\n<\/div>\n\n\n\nAims of Legal Negotiation<\/h2>\n\n\n\n
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Ethical Considerations<\/h2>\n\n\n\n
Forms of Negotiation<\/h2>\n\n\n\n
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<\/a>Competitive negotiation<\/h3>\n\n\n\n
<\/a>Integrative negotiation<\/h3>\n\n\n\n
Negotiation Styles<\/h2>\n\n\n\n
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Stages of Negotiation<\/h2>\n\n\n\n
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Preparation<\/h3>\n\n\n\n
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<\/a>The law<\/h4>\n\n\n\n
<\/a>Your client<\/h4>\n\n\n\n
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<\/a>Strengths and weaknesses<\/h4>\n\n\n\n
<\/a>Getting to yes<\/h4>\n\n\n\n
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Planning the negotiation<\/h4>\n\n\n\n
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<\/a>Exchanging information<\/h3>\n\n\n\n
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<\/a>The negotiation<\/h3>\n\n\n\n
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<\/a>At the start<\/h4>\n\n\n\n
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<\/a>In the negotiation<\/h4>\n\n\n\n
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<\/a>Closing<\/h4>\n\n\n\n
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Top 10 Tips for Negotiation Success<\/h2>\n\n\n\n
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Useful Links<\/h2>\n\n\n\n
http:\/\/www.negotiatormagazine.com\/article265_1.html<\/a><\/p>\n\n\n\n
http:\/\/www.abanet.org\/lsd\/competitions\/negotiation\/<\/a><\/p>\n\n\n\n
http:\/\/www.everyonenegotiates.com\/determineyournegotiatingstyle.htm<\/a><\/p>\n\n\n\n
http:\/\/www.ebsglobal.net\/programmes\/negotiation-quiz<\/a><\/p>\n\n\n\n
http:\/\/www.human-law.co.uk\/Resource-Articles\/10-Negotiating-Tips.aspx<\/a><\/p>\n\n\n\n
http:\/\/www.cedr.com\/training\/competition\/index.php<\/a><\/p>\n\n\n\n
http:\/\/www.negotiatormagazine.com\/<\/a><\/p>\n\n\n\n
http:\/\/www.crnhq.org\/pages.php?pID=7<\/a><\/p>\n\n\n\n
http:\/\/www.colorado.edu\/conflict\/peace\/example\/fish7513.htm<\/a><\/p>\n\n\n\nTry It Yourself Answers<\/h2>\n\n\n\n
Competitive negotiation<\/h3>\n\n\n\n
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Integrative negotiation<\/h3>\n\n\n\n
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Negotiation styles<\/h3>\n\n\n\n