Most people know that lawyers argue and fight in the court. Few people know, however, that lawyers are negotiators who constantly try to make a deal outside the court. Think about that: in the contexts of both family law and business law, 90-95% of the disputes will eventually be settled outside the court at certain stage. Even if a matter goes to trial in the end, 50% to 70% of the issues have probably been resolved before trial. Needless to say, good lawyers must be good at negotiation.
So what will a good negotiation require? The answer in one single word would be: preparation. Good preparation involves several aspects, from before starting to after finishing.
Before starting, lawyers will first gather the facts, understand the issues, and canvass the parties’ positions to see if there is common ground. Lawyers and their clients must clearly know what they want and whether that can be accomplished through negotiation. Room for negotiation may be very limited if there is a huge imbalance of power or resources between two parties. In this situation, the party who possesses superior power or resources may not be interested in negotiation at all.
Luckily most cases are not like this, and something can be achieved through negotiation. In many cases it may seem impossible to strike a deal, but this is not necessarily so the case. Lawyers should prepare themselves and their clients and change their attitudes: negotiation should be based on the parties’ interests, not rights or entitlements.
Ask yourselves this: Is there anything important in the dispute other than money? One would be surprised to find that parties will often place quite a bit of value on a simple apology, which, if made and accepted, would resolve essentially all the issues. In the context of family law, the interests-based approach is particularly important. There are almost always more than one single interest present in a family relationship. In addition to the claims one may put on paper, what about the interests of the children, peace between the spouses, and feelings and emotions now, in the past and in the future? In the commercial context, what are the parties’ long-term interests and will they cooperate in the future? Whenever possible, a good negotiation should always focus on maximizing both parties’ joint returns instead of one party’s gain.
Having understood this, a party or good negotiator should be prepared to not give too much away during the negotiation. You should have your goals and bottom lines, and stand firm throughout. When close to reaching an agreement, a party may easily make too many concessions. One must still have a cool head and be prepared to walk away from the round table.
After reaching a deal, be prepared to follow through the terms of the agreement and resolve new issues that did not arise during the negotiation. If appropriate, one may resort to the court to have the agreement enforced (or, although rarely, nullified).
Depending on the facts, the goals and the parties’ interests, there are many ways to proceed in a negotiation. A good negotiator should be on top of everything and keep a cool mind. I was once told good lawyers are born negotiators, and they negotiate even while dreaming. This is not an exaggeration.
Author’s note: Jeff Li is a lawyer based in Markham, Greater Toronto Area. He does exclusively family law.