FAST AND FAIR: HOW TO GET WHAT YOU WANT (AND WIN YOUR CASE) WITH EFFECTIVE NEGOTIATION

Congress is extending their self-imposed deadline to adopt a budget, created following the governmental shut down last fall.  Does the absence of effective negotiation skills contribute to their inability to reach a sound, workable budget?  Why can’t members of Congress negotiate productively? One problem:  42 of the 100 members of the Senate and 156 of the 435 members of the House of Representatives are trained as lawyers

Unfortunately, most law schools do not include many skills oriented courses, and even fewer offer training in negotiation. This semester’s line up at my own alma mater includes nearly fifty courses. Not one course focuses on negotiation skills. Most of the courses cover substantive law areas, such as Estate and Gift Tax, Property or Securities.  Two of the courses, alternative dispute resolution and interviewing probably address some negotiation related skills. 

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What is the result of this focus on legal reasoning within the adversary process at the expense of negotiation skills?  In many settings, we wind up with two articulate advocates making well-reasoned arguments.  However, they fail to resolve the dispute efficiently.  In court cases, as many as 97% of civil cases will be resolved through a settlement.  Without effective negotiations that resolution is delayed for months or years, involving a long and difficult process.

In 2009, I received a master’s degree from the Center for Justice and Peace at Eastern Mennonite University, to complement my law degree.   I completed one full course devoted entirely to negotiation and enrolled in many other courses focusing on conflict resolution theory and skill, the heart of negotiation.  Here are a few guidelines I find helpful to reach a fast and fair agreement through negotiation.

  • Listen more than talk.  We can get carried away with our brilliant arguments, but if the other party in a conflict has a concern or need that is not being addressed, that brilliant argument may not address those concerns.  We need to stop and listen long enough to understand where the other side is coming from.
  • Attempt to identify the other parties’ interest, needs or motivations.  In Getting To Yes, William Ury opened up the possibilities in negotiation by urging us to identify the other parties’ interests and then exploring how those interests might be met without compromising our own interests.
  • Be open to multiple options.  Sometimes in negotiations we are tempted to see only two positions, theirs and ours.  Often there is a third way that could address both needs and it is critical that we remain open to those multiple options.
  • Abandon the idea that there is a “fixed pie.”  In negotiations, it can be easy to fall into a trap and assume that there is a fixed amount of resources to be negotiated, for one to win the other must lose.  Often when the interests are fully explored, addition items of value can be identified and matched to the party’s interests to fully meet the needs.
  • Don’t give up too early.  It’s so easy to say we are at a stalemate.  There is nothing to be done.  We just have to let someone else decide.  In Getting Past No, William Ury urges us to “go to the balcony” in those circumstances.  In other words, can we remove ourselves enough from the conflict to be able to re-evaluate the conflict?   Could a third party, such as a mediator be involved to help us with that evaluation? 

While I’m not sure how or when Congress may resolve the budget, I’m optimistic that I can bring these skills to assist my clients in resolving their legal case as fairly and as quickly as possible.  As Winston Churchill observed in addressing an international conflicts in 1954--“Meet­ing jaw to jaw is bet­ter than war."  Be sure to select an advocate who can not only go to war, but who can also meet "jaw to jaw."