The art of negotiation

February 16, 2013

Most people know lawyers argue and fight in the court. Few people know, however, lawyers are negotiators who constantly try to make the deal outside the court. Think about that, in both family law and business law contexts, 90-95% of the disputes will eventually be settled outside the court at certain stage. Even if a matter goes to trial at the end, probably 50% to 70% of the issues have been resolved before trial. Needless to say, good lawyers must be good at negotiation.

So what will a good negotiation require? If I put the answer in one single word, that will 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 are common grounds.  Lawyers and their clients must clearly know what they want and whether that can be accomplished through negotiation. The room for negotiation may be very limited if there is 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 looks like impossible to strike a deal at all, but not necessarily so. Lawyers should prepare themselves and their clients and change their attitudes: negotiation should be based on the parties’ interests, and not rights or entitlements.

Ask yourselves this: Is there anything important in the dispute other than money? One will be surprised to find that parties will often place such a high value on a simple apology, which, if made and accepted, will 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 the 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 not giving too much away during the negotiation. You should have your goals and bottom lines. And stand firm. Close to reaching an agreement, a party may easily make too many concessions. One still must have a cool head and be prepared to walk away from the round table.

After reaching the 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).

Depends 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 all this and keep a cool mind. I was once told good lawyers are born negotiators, and they negotiate even in their dreaming. This is not exaggerating.

 

Note of author: Jeff Li is a lawyer based in Toronto. He does mostly family law and civil litigation, and also some tax law and immigration law issues.

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