Category Archives: Negotiations

Nuts and bolts of negotiations

dispute_resolution_elephantsAbout the first time I ever went out to negotiate the settlement of a legal dispute, all I could think to do was to say all the reasons why my client’s position was right and the other guy’s was wrong.

I didn’t get very far. The first time I tried that, the other guy just agreed with me and said, “Now, let’s see what a jury thinks that’s worth.” End of discussion.

The next time, the other guy was like me and he told me all the ways he was right and I was wrong. We didn’t know what to do next.

It turns out that preparing to negotiate is a very different thing from preparing to try a case. There’s a vast range of strategies and tactics that only begin with the legal analysis. In fact, negotiations is the subject of its own field of learning. The great universities (Harvard, Oxford) conduct research and offer programs about it.

Here are a few mundane hints at where you might start the thinking; ones that I gleaned from a recent Brooks Pierce workshop presented for us by Marty Scirratt of Sync Negotiation.

  • Never accept the first offer. (Duh.)
  • Opening anchors have a greater effect on outcomes than all of the subsequent concessions combined.
  • You must have a clear sense of what your objectives are, and which are the ‘Must-Haves’ and which are ‘Like-to-Haves’.
  • The stronger your alternatives are, the better the terms you can negotiate.
  • Without a clear alternative, it is impossible to understand when to accept a final offer and when to walk away.

These bullets are just a start at one angle on the discussion. But, even these would have been a mighty big help to me all those years ago, when I was  trying to think about how to persuade Hamp Howerton that his client should agree to everything my client (the wife) was asking for.

The husband was indubitably a skunk — as Hamp cheerfully agreed. But, as is so often true of skunks, he had nothing to lose.

Negotiate that.

The critical skill for lawyers? a core function of lawyers is to span boundaries – to forge connections across divides between adverse interests –  then negotiating must surely be a critical skill for lawyers. Negotiating finds the path through uncertainty and ambiguity between adverse interests.

In the context of a law firm, how to negotiate is a subject that all lawyers have in common regardless of practice areas. After an initial lawyer training session on negotiations at Brooks Pierce, one of our senior lawyers (a “grizzled veteran”) said to me, “You know negotiating is really all I have ever done.”

Do law schools offer negotiations classes or training? If they do, I do not know it. You would think they would — if it is a critical skill, the need of which is shared by everyone in the profession. We have taken up the issue at our firm.

Negotiations training for lawyers — an idea that works

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How to negotiate — how to do it well — is something our lawyers have an appetite for. They don’t hear stories about negotiating as bragging. They take them in. And the best  lawyers all harbor finely honed personal theories about the subject. They have thought a lot about it. Regardless of practice area.

So, we are continuing with our series of lawyer training presentations in which we pair experienced Brooks Pierce lawyers with Marty Scirratt of Sync Negotiations. The presentations become general discussions almost immediately. Everyone gets engaged.

Marty Scirratt is  adept at both keeping things within an objective learning framework, and also at converting talking into experiential learning.

This is an idea that is working.