From the Editor
Negotiation: The Art of Problem Solving Learned by Age Five

By Jennifer J. Ator

Negotiation skill, the most important tool in the lawyer tool box, is a core concept in daily life. As a lawyer, contemplating the negotiation is part of the job. Lawyers plot, strategize, evaluate, and estimate what steps will bring the client’s matter to a successful result.

All that plotting and pondering got me thinking. How does negotiation fit into the average Joe’s life? If I had not already tried to map out the whole negotiation in my head, what would I be thinking? Is it possible to think like a reasonable person when you are trained to overanalyze every contract, every pleading, and every offer?

Then, I started talking to my five-year-old son and it occurred to me: Those negotiation skills are not lawyer skills—those negotiation skills are fine-tuned in preschool. Wow, seven years of higher education, and a five-year-old can beat me at “my” game.

After observing, analyzing, and evaluating (after all, isn’t that what lawyers are good at), I think I understand why. Preschoolers risk it all. True, the risk is not usually life altering (although they usually think it is) or potentially painful (although, again, they usually think it is). Moreover, a preschooler does not have to answer to a board of directors or a client regarding the decisions that he makes.

By being basically blind to risk, children are able to develop at a very young age the important negotiation skills they will use throughout their lives. Successful relationships are based on the ability to negotiate well.

In life, children negotiate with parents, spouses negotiate with each other, neighbors negotiate regarding neighborhood rules, politicians negotiate to pass laws, and friends negotiate social lives. In the law, opposing parties negotiate resolution to litigation, partners negotiate contracts, and buyers and sellers negotiate real estate sales.

Negotiating well in life and in the legal practice requires that the parties negotiating want something from each other, that they are willing to resolve the issues, and that each party must have the ability to decide. From the time children can communicate, they learn to negotiate to get what they want. At the beginning, they negotiate like terrorists—the littlest children do not understand that being unreasonable is not going to facilitate negotiation in the future. But quickly, children figure this out. It is amazing how they can figure out exactly when they are crossing the line. Unfortunately, the most important tool in the lawyer tool box is a skill that often gets clouded by the experience of being a lawyer. It is an art lawyers often forget.

As a lawyer and a mediator, I have seen parties, usually led by lawyers, completely overplay their hand. The party wants to resolve the issue but is unwilling to close the deal out of a firm belief that the other party will not walk away. Then, when it is clear that the hand was overplayed, a sense of pride, arrogance, and ego won’t allow the lawyer or the party to retreat from the firmly entrenched position. It happens too often.

But it doesn’t happen to my five-year-old—or many other preschoolers. When my five-year-old overplays his hand, he knows it; and he does what it takes to get the result he wants, even if he has to change his approach. As lawyers, this is the ultimate lesson. Allowing pride and conceit to get in the way of a successful negotiation is dumb, and 99 percent of the time it does not get clients what they want: resolution.

There is a lot of room in the legal profession for arrogance and ego, but lawyers need to remember the big picture and know when to hold them and know when to fold them. Maybe they should change the name of that Robert Fulghum book to All I Really Need to Know I Learned BEFORE Kindergarten. In this case, it would probably be more fitting.

practices with Tannebaum Weiss in Miami, Florida.

Copyright 2007

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