Lawyers and the Art of Negotiation

Posted on

28 Jun

2021

Dittmar & Indrenius > Insight > Lawyers and the Art of Negotiation

In demanding negotiations, clients often turn to us lawyers for assistance, not only because of our legal expertise, but also because we are believed to be professional negotiators. But are we?

In my studies at university and to become a member of the bar, I did not come across any information – let alone courses – on how to become a good negotiator. And when I joined D&I, negotiations were something that happened in closed meeting rooms. As a young lawyer, you were excited if you were ever invited in.

So I was lucky to be among the first lawyers in the firm to be sent to Harvard Law School’s summer courses in negotiation. A whole new world opened up to me. There were scholars who had actually studied negotiation and sought to systemize aspects of it. I was blown away and inspired by their findings.

To this day I am thrilled about the art of negotiation. Why? I guess it is because negotiations are democratic, highly tactical and very psychological.

We are experts in the interface between the complex "legal stuff" and human beings.

By democratic I mean that, contrary to what many people think, your strength as a negotiator is not dependent on your age, position or experience. You can negotiate from a position of strength or of weakness. In negotiations no-one can force the other party to do anything. The challenge is to get the other party to agree to a solution that you are happy with. And in that process age, position, experience and even negotiation position can be irrelevant. An old, experienced bully cannot force a shy youngster to accept any negotiation result.

Negotiations are all about tactics. Do you know for whom the clock ticks – which side is under time pressure? Who decides what is being discussed, how the available time is being used? Are the parties genuinely seeking a mutually advantageous outcome, or is a party focused on who is right and wrong? Do the parties have access to the same information, or is one of them lacking relevant facts? When you start negotiating, it is important to know the answers to these and many other questions, so that you can choose and consistently apply the right tactics.

Negotiation is goal-oriented human activity and psychology is always crucial. There is no negotiation where human beings aren’t present in full, with all their strengths and shortcomings, all their feelings and beliefs, their education and understanding of the world, their cultural background and upbringing. Since your goal is to make the other party want to agree to an outcome which is as good as possible for you, you need to consider the human being on the other side as a whole. See them as complete human beings, with ambitions, feelings and fears. You are not likely to be successful in forcing the other party to accept your arguments. On the contrary, you need to listen and understand how they think and view the situation at hand before you will be able to present a solution that they will find attractive and acceptable.

At D&I we continue to send our lawyers to Harvard for negotiation and mediation courses and we also seek to actively share learnings from various negotiations. We believe that our role increasingly is about communication and human interaction in relation to all the complexities of the legal world. In addition to being experts on laws and regulations and how they are applied in various markets, we are experts in the interface between the complex “legal stuff” and human beings.

But we are also in a unique position to learn and become experts in how human beings interact with each other in negotiations – how people act and react in different negotiation scenarios, what convinces them and what merely provokes adverse reactions.

We lawyers certainly want to be professional negotiators and for example at D&I we continuously and actively work to develop our expertise. It is, after all, only through hard work that we can live up to our clients’ expectations and truly be professionals in the fascinating art of negotiation.

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