This year’s Annual Meeting will feature an advocacy practicum that is sure to enhance your practice. On Wednesday, April 24, 2019, Forum member and construction-law legend Ava J. Abramowitz will present “Today’s Strategies for Negotiation Success.” In advance of the practicum, I sat down with Ava to discuss her interest in negotiations and construction law.
Ava began her legal career as an Assistant United States Attorney. Her foray into construction law came when she served as in-house counsel to the American Institute of Architects during the insurance conflict of the 1980s. It was in this role that Ava realized that there was a huge disconnect between the intentions of the law and the realities of the people working in the construction industry. “It became clear that architects, engineers, and contractors didn’t know how to use the law and were feeling truly victimized by it,” she says. “I began writing to explain, as much as possible, how the law worked for them.” As Ava would say, the law “is not something to be afraid of. You can put it to work for you whenever a problem arises, whenever you negotiate.”
In so doing, Ava learned that architects and engineers often would not negotiate the negotiable, mostly because they were never taught how. “Designers and constructors in the real world are surrounded by owners, MBAs, and lawyers well-trained in negotiation. Not knowing what to do at the negotiation table puts the A/E and contractor at a distinct disadvantage even though they are the ones responsible for implementing the design and construction contracts. Furthermore, they are often surrounded by lawyers who think that, as soon as the contract is signed, they have served their client well. But excellent legal service is not defined by the lawyer, but by the client. And the measure most clients use is not how well the contract worked for any one client; what matters, what gets measured, and indeed what counts to them is how well a contract worked for them and the project.”
Realizing this disconnect in the industry, Ava wrote a book for architects and engineers on negotiation. “I wanted them to start to understand that creating and achieving great design was a collective process. What kept it going was as much their ability to negotiate and communicate as their skills at design and construction. It was their ability to noodle through problems as they arose that led to project success. No one player could do anything alone.”
These concepts of mutual respect and well-founded interdependence are central tenets in Ava’s current role as a private mediator. Mediation “doesn’t have to be mini-court; it doesn’t have to be just a stepping stone [to get a trial date], or an obstacle to a solution.” Rather, Ava encourages both sides to “flip their brain and come out of their own corner” in order to understand how they got into the dispute in the first place and discover ways to resolve it. “Many people in the construction industry want a quasi-judicial process. The reality with construction is that 80 percent of the time you are going to be working with that person again, or someone that knows you and that person, so your reputation is critical. It is in your business interest to maintain a reputation of being easy to work with. Not easy—just easy to work with. Negotiation skills are what make that possible.”
Part of that “brain flip” is understanding that a problem is an opportunity for participants to show their true worth on the project: “Money can either be spent on lawyers or it can be spent on the building.” Ava’s approach to negotiation encourages spending on the latter. “You really have to understand that people are complicated, and you’ve got to figure out where they are so that you can meet them there and help them to the next step. And to me that is the role of the mediator—not transferring offers and counteroffers from one room to the other, but helping people work through their problems so that they can move in a direction that serves their interests and needs.”
Ava’s upcoming practicum will provide an advanced course on improving negotiation skills based on research on communication and persuasion. “Lawyers are brought up to give information. That’s how you get an A. You stand up in class and you tell what the case is about, who was involved in the case, what the court had to say, and you tell and tell. Unfortunately for well-trained lawyers, outside of the jury setting, most people are not persuaded by telling. Expert negotiators know this. They persuade by asking—by helping the person figure the problem out for themselves.”
This “collective learning” approach is especially useful in the construction industry, where parties frequently work with the same people and where negotiation happens throughout the life of the project. “An expert negotiator is perceived as an expert because they routinely develop deals, the deals are routinely implemented successfully, and the parties are willing to deal with that negotiator again.” As Ava explains, “You want your client’s agreements to be implemented successfully. That is what’s critical: implementation of the deal, not mere achievement of the deal.”
Make plans to attend this special practicum today and learn how to become an expert negotiator. Tap into Ava’s insight on negotiation and revolutionize the way you negotiate, mediate, and even the way you handle day-to-day operations on your construction projects.