The Art of Negotiation
As lawyers, we must acknowledge the vital role of negotiation in all aspects of legal practice. Whether settling a personal injury case with an insurance company or trying to reach agreement as to custody arrangements in a divorce proceeding or simply ensuring that certain terms are included in a simple contract, the art of negotiation is utilized by every lawyer in every aspect of legal practice. At the earliest stages of our career, we must engage in the “art” of negotiation.
In this context, style becomes extremely important. If you have given this matter any thought, you will have realized the variety of styles that are adopted by different lawyers.
Some lawyers are polite and softly spoken as they try to move forward toward reaching a settlement. Some are dismissive and start out by implying that they will offer nuisance money for a nuisance claim. There are those who will be highly disingenuous and try to convince their counterpart that “I’m doing you a favor” after a friend-to-friend discussion about the economy or sport. Some use humor and charm in trying to move toward mutual agreement. Some litigators are cold and conceal their personality—somewhat similar to professional poker players. Many are dramatic and act as though they are shocked with their counterpart’s proposal. Others apply a strategy of making a highly unreasonable offer and simply walking away when their counterpart makes a counteroffer at the opposite end of the scale.
The latter strategy does not sound logical, but it proved to be remarkably effective in that it moved our counterpart to making real and acceptable offers very quickly. I speculate that this strategy would not work for all lawyers, but it worked very well for the particular lawyer who deployed it.
It was many months later when I read an article that addressed this strategy. It is a deeply psychological technique that asserts control and power over the negotiations. Inevitably, there will be an element of bluffing, and in some circumstances the bargaining positions of the respective parties will render the technique unviable.
As a lawyer and a professional negotiator, you must ask yourself what style will work best for you. This is a question that I have given a great deal of thought to. I had concluded that a negotiation style was a product of confidence and years of experience—perhaps in the early stages of my career, I should simply try to adapt to the style and personality of my counterpart. Perhaps after some time I would develop my own unique approach to the question of negotiation.
When engaging in negotiation, there is simply one question that must be resolved. What are my client’s objectives? Unless you are clear as to the answer to this question, you can not work toward reaching your client’s ultimate goal. This question is so obvious, it may seem inappropriate to mention. But consider the following example:
Your client, a personal injury plaintiff sues for damages. The client’s objectives are very clear and obvious. In most circumstances, the role of the negotiator will be to achieve a settlement within the range of what a court might award the plaintiff. The more money for your client, the more successful the outcome!
However, the same cannot be said for family law proceedings. Where a family unit is in crisis, it may be in your client’s interests to arrive at a solution that goes some way toward accommodating the adverse party. If by achieving everything in a family law complaint, your client financially and emotionally destroys her former spouse and deprives her children of the support and contact of a father, is this truly the best result for your client? Of course, I do not suggest that lawyers should ignore express instructions and decide for themselves what is in the best interests of the client. However, in the midst of a battle when relations become extremely acrimonious, the client’s attention should be focused on the consequences of any particular course.
Clearly, style will only take you so far. In the end, the art of negotiation is useless without investigating and being aware of all the facts. Knowing your case well is what negotiation is all about!
From my own experience, I have come to the realization that the art of negotiation is a highly psychological subject requiring the analysis of interpersonal skills and thought process of others. My conclusion is that different negotiation styles will work for different people. Negotiation skills are quite instinctive. I speculate that lawyers who try to imitate others will make the worst negotiators. Those who trust their instinct and act as they feel appropriate, always trying to achieve the greatest advantage over their adversary, will be the best negotiators. The latter approach enables the negotiator to be flexible, sharp, sincere, and genuine.
Eamonn M. O’Hanrahan is a graduate of Anglia Law School, United Kingdom. He is admitted in Ireland and New York. He is currently studying an LL.M. at the Columbus School of Law, Washington, D.C.
© Copyright 2010, American Bar Association.