With Canada facing international negotiations on softwood lumber and possibly even free trade with the U.S.A., negotiation is at the forefront of many news stories.
Negotiation is an important tool for lawyers who are “in the business of solving problems,” says Leslie H. Macleod, a mediator and specialist in conflict resolution, based in Toronto.
“Some people think that negotiation is very simple because it looks simple when it’s really well done,” she says. “But it’s a really complex skill because it relies on – at a minimum – interpersonal skills, communication skills, analytical skills and strategic thinking skills.”
Being able to negotiate effectively can be a key to a lawyer’s success, according to Macleod, who practices with Leslie H. Macleod & Associates and is a professor at Osgoode Hall Law School, where she is the co-director of the master’s program in dispute resolution.
Jonathan Jacobs, a Toronto-based lawyer who has a background in international trade litigation and dispute resolution, agrees.
“If a lawyer can’t confidently negotiate, I think that they will not be able to best represent their clients with that requisite level of zeal,” says Jacobs, who works as mediator and does negotiation consulting. “A lawyer who can confidently negotiate can produce results from the negotiation that add more value.”
Julie Macfarlane, a professor in the University of Windsor Faculty of Law, who is an expert on conflict resolution, mediation and legal practice, says that 95 per cent of cases will settle before a full trial.
“For many, many decades, most cases have settled but they settled at the very last minute – on the courthouse steps, as they say,” she says. “There has been a prevailing assumption that you are still always getting yourself and your case and your client ready for trial – despite the fact that trials almost never happen.”
Macfarlane, whose bestselling book The New Lawyer: How Settlement is Transforming the Practice of Law will be released in a new edition in 2017, says that she’s encouraged to see that negotiation is becoming a more intentional process for lawyers.
“Increasingly lawyers are starting to prepare their clients for the inevitability of settling much earlier on and this is a much better way to get a really good outcome for the client,” she adds.
Macfarlane, Macleod and Jacobs offer the following tips for negotiation:
Wait until the matter is ‘ripe’
Skilled negotiators or those who work in international diplomacy often talk about the idea of a matter being “ripe for settlement,” according to Macfarlane.
“You basically can’t get a settlement until there is some incentive on both sides. If there is no incentive, you can be in endless stalemates,” she says. “The point in which both sides are hurting – what is sometimes called the hurting stalemate – is the point in which the case starts to feel ripe for settlement.”
Part of being a skilled negotiator is anticipating this situation, says Macfarlane.
Put yourself in their shoes
Jacobs recommends that lawyers “try to take a step towards the other party’s side by putting themselves in that lawyer’s shoes and trying to listen to them more closely.”
“You may be able to make some more progress based on your newfound understanding of their side as opposed to just repeating your side over and over again – that is not going to get you anywhere,” he says.
Macfarlane agrees, recommending that lawyers think about, “What is it that is important to the other party? What will make them want to settle?”
When lawyers are preparing for a trial or an adjudication, they are often completely focused on their argument and their rebuttal, says Macfarlane.
“But in litigation they are not putting themselves in the other side’s shoes and so it’s a real mind shift. I think we are starting to see this,” she says.
Be creative
Macleod says creative lawyers can help their clients to move through an “unanticipated impasse.”
“Be able to analyze the situation objectively and constructively and canvass ways in which to move beyond the impasse,” she recommends.
Some examples of creative solutions suggested by Macleod are parking some issues to return to later, bringing in other experts to the negotiating table “to expand the knowledge and augment the expertise at the table” or having a deeper conversation to better explore the interests of the parties to discover different options for settlement.
Avoid fighting
“Even though lawyers consider it their trade to argue, try to avoid fighting and repeating your efforts to prove you’re right and they’re wrong over and over again,” recommends Jacobs.
He also advises lawyers “not to take the bait.”
“It’s so easy to be tempted to always think of a rebuttal to the other side and repeat it back. But if you’re counter-attacking them, you are likely to go around and around in circles and not to make any progress in your dispute,” advises Jacobs. “And that will only further the tension that is going to exist.”
Instead, he recommends getting some distance by taking a break or going for a walk.
“Take that time to really reflect and think about what your goals are for that negotiation so that you can come back with more focus instead of counter-attacking back,” Jacobs adds.
Use different techniques
Lawyers should understand the theory and models of negotiation, such as competitive versus cooperative, and employ these techniques when appropriate, says Macleod.
“Know when and how to use each model effectively and be prepared to adapt your preferred style to the unique features of the negotiation,” she recommends.
For example, if a lawyer is cooperative by nature but is facing a competitive lawyer, she may need to “bring her competitive self forward to do the best for her client,” says Macleod.
Be prepared
“I know some people are of the view that it’s only negotiation and therefore winging it is appropriate, but I don’t subscribe to that view,” says Macleod.
She recommends knowing your file from the “inside out” and also getting to know the party that you are negotiating with.
Before the negotiation, lawyers should think about their client’s positions and interests and those of the other party, says Macleod.
“Also anticipate the challenges – the deadlocks that could arise – and how you could overcome them,” she adds.
Don’t escalate the situation
“Even if the other negotiator has dug in and won’t budge, you are being hired as a negotiator to help solve the conflict not to escalate it by saying, ‘We are in deadlock now’ or being equally positional back,” says Jacobs. “That is where these conflicts spiral out of control.”
Instead, he recommends advising the other side of the consequences for them and for your client if they cannot reach a resolution.
For more tips on negotiation, check out Breaking Deadlock: Reopening Hopelessly Blocked Negotiations available as a rebroadcast as part of the CBA’s Solution Series.
Carolynne Burkholder is a lawyer with Heather Sadler Jenkins LLP in Prince George, B.C.