Posted: Friday, 4 January 2019 @ 13:43
Described by one training organisation as the “skill that
transcends all others”, negotiation, once mastered can help you achieve
improved results in many different business and social situations.
For lawyers
and their clients in a dispute situation effective negotiation skills and
techniques can be invaluable in reaching a settlement whilst also keeping legal
costs under control.
Here are some Do and Don’t tips for
anyone involved in a negotiation. Follow this approach and your next
negotiation could be a pleasurable experience, resulting in success.
Be prepared
This may sound obvious but on a number of occasions I have
conducted mediations as either a mediator or a solicitor and come across
parties who have not really understood what is involved.
By considering the following points you can make sure you
are prepared for an effective negotiation:
Goals: what do you want to get out of the negotiation? What
do you think the other person wants?
Negotiating points: What do you and the other person have
that you can trade? What do you each have that the other wants? What are you
comfortable giving away?
Options: if you don’t reach agreement with the other person,
what alternatives do you have? Are these good or bad? How much does it matter
if you do not reach agreement? And what alternatives might the other person
have?
Relationships: what is the history of the relationship? Will
there be any hidden issues that may influence the negotiation? How will you
handle these?
The consequences: what are the consequences for you of winning or
losing this negotiation? What are the consequences for the other person?
Power: who has what power in the relationship? Who stands to
lose the most if agreement isn’t reached?
Possible solutions: based on all of the considerations, what
possible compromises might there be?
Bring the right people: only those who have confidence in
the process or inadequate knowledge of the dispute are useful. Anyone else
could harm your chances of getting the deal done.
Keep reviewing the strength of your case: Whilst you are at
the mediation or negotiation, keep assessing the strength of your case and
seeing how the interaction is going.
Be realistic
Assess your strengths and weaknesses in the case. Your
position in the negotiation will be advanced if you have an understanding of
your "Best Alternative to a Negotiated Settlement."(BATNA) This
represents what you will do if an agreement is not reached in a negotiation.
Consider consequences of a failed mediation or negotiation. No matter how good
a mediator is or how effective a negotiator you are, there is always the risk
of a failed mediation. If you have considered your bottom line with thought,
you can walk away without regrets.
Identify your legal and other costs
Before entering into any negotiation you need to gather the
facts – but one crucial fact that is often neglected is the level of legal and
other costs incurred. This is essential in helping to put a value on the case
and bring a sense of perspective to the situation. In mediation the mediator
will almost always get the parties to think about the level of legal costs
incurred on the case, as a way of assisting a party in valuing a case. When
putting a value on the case it’s important to consider the intangible
consequences, such as loss of business opportunities that inevitably accompany
the process of conducting litigation.
If you can, make first offers
There has been a fair amount of discussion on this but in my
experience a party who makes a strong but realistic first offer is in a better
position than one who does not. An aggressive first offer can work in your
favour as one of the most effective ways to getting the most from your
opponent. The main advantage is that it allows you to offer concessions and
still reach an agreement that’s much better than your alternative agreement.
Do a risk assessment
Case analysis or what can be termed risk analysis is very
important in a negotiation as it provides a framework within which one can
negotiate a case. Without good case analysis, the negotiator does not have a
compass and he or she will be ineffective. This is where legal skills can come
to the fore and having a lawyer present is very useful.
Have the right attitude to the negotiation
The way that you interact with the other side will impact
how they interact with you. Remember the greatest impediment to settlement is
the view that the case will not settle. Instead try to think of well-thought
out proposals which can reach agreement.
What to avoid when negotiating
Don't treat a negotiation like a Court case
One of the biggest criticisms that I can level at lawyers
during mediation and in fact in any negotiation is they often focus just on the
law and they neglect the other dynamics of the situation. Whilst the law is
important a point not to neglect is that you are attempting to reach a deal
with another party not convince a 3rd party (namely a judge) of the merits of
your case. In a negotiation you need to bring in empathy with the other party,
consider reasonableness and bear in mind that you are looking for a win, win
solution, not a win, lose one.
Don't be aggressive
The nature of the English legal system encourages one to be
adversarial. Whilst it’s important to be firm in one's position, do not be so
aggressive that you upset the other side so much that you jeopardize the
chances of a deal being reached.
All too often the reason a negotiation fails
is that the parties are far too macho, they want to be right or score points,
which all serves to wind the other side up and reduce the likelihood of an
agreement being reached.