From courts and clients, calls for broad expertise in the delicate craft of negotiation

  • January 01, 2014
  • Amy Jo Ehman

Every day, Terry Whyte puts on his plumber’s cap, grabs his toolbox, and heads to work. Depending on the client, he might spend the day navigating a complicated connection or sorting out a sticky, convoluted mess. He is a master tradesman. But his toolbox doesn’t include wrenches and duct tape – his “tools” are a good listening ear and a penchant for thinking outside the box.

Whyte is a partner at Templeman Menninga LLP of Belleville and Kingston, Ont., who specializes in negotiations in the labour environment. Long before studying law at Queen’s University, he worked as a plumber, and he remembers that humble beginning every time he sits down to negotiate on behalf of a client.

The art of successful negotiation, says Whyte, is being able to empathize with the opposing party and to put your own ego aside.

“As a lawyer, I’m nothing more than a tradesman. My skill is dealing with words – talking and problem solving,” he says. “I’m not trying to denigrate the practice of law, because there are some great tradespeople and some great lawyers. But the great lawyers are not great because they’re lawyers, but because they’re thinking people, they’re smart and they understand human relationships.”

A focus on problem solving

Human relationships are at the heart of almost every legal dispute and, therefore, the bedrock of negotiated settlements. Whether the two parties are a company and its unionized employees, a disgruntled consumer and a defiant shop owner, or an estranged husband and wife, understanding the nuances of the relationship is job #1.

That presents shades of grey not often recognized in the judicial system, where court rulings are based on points of law and outcomes are characteristically black and white. However, the judicial system is now demanding more negotiated outcomes to avoid the time, expense and acrimony of going to court.

“If you can negotiate a settlement, as opposed to going to war on every issue, everybody’s better off. You recognize that there is an ongoing relationship that needs to be protected,” says Whyte, who, between his plumbing and legal careers, worked for 20 years in the field of human relations in the mining and industrial sectors.

When he entered law school at the age of 40, he was surprised to learn that negotiation and dispute resolution were not part of the curriculum. For nine years, he taught a course on negotiations at Queen’s law school and, last year, completed a Master of Laws in labour negotiations at Osgoode Hall.

“It’s been at the forefront of the labour movement since the 1970s and, more and more, I’m seeing it happen in the litigation field,” he says. “It’s a way of moving forward and getting things off the docket. If you can address the issues through negotiation, it relieves the pressure on the court system and, to some extent, creates better solutions.”

Winning isn’t winner-take-all

A strong advantage of negotiated settlements is the ability to craft a solution that doesn’t pick sides. Take, for instance, the case of the used car deal gone bad. The client demanded her money back because the car needed extensive repairs. The dealer said the car was sold “as is” and had a contract to prove it. Tempers flared and tensions were high.

“If they had gone to court, the judge would have said, ‘You’re right and you’re wrong.’ There would have been some money changing hands - or not. Somebody would have won and somebody would have lost,” says Andrew Pirie, professor of law at the University of Victoria and author of Alternative Dispute Resolution: Skills, Science, and the Law.

In this case, Pirie was engaged to mediate an outcome that both parties found acceptable. The dealership agreed to repair the car at cost. The client agreed to pay for it. Thus she was able to fix her car for about half price, while the dealer did not set a precedent by refunding her money. Rather than spending an acrimonious day in small claims court, they reached a mutually acceptable deal in three hours flat.

“Not only did they reach that agreement, but they stood up and hugged each other. This points out that when you encourage the parties to reach their own agreement that they’re happy with, as opposed to having an agreement imposed on them, there is often more satisfaction in the outcome,” says Pirie.

The “used car” case pokes holes in the myth that negotiating a legal settlement is about lose-lose compromises and giving in. Both parties made their point and “won” an outcome they could accept. “The process helped resolve some substantive problems about money,” says Pirie, “but it also helped restore some trust in a continuing relationship.”

The law means never having to say you’re sorry...

With few exceptions, the courts in Canada do not demand apologies. However, some jurisdictions, such as British Columbia, are enacting apology legislation which recognizes the therapeutic impact of “I’m sorry.” It is a myth to think apologizing is a sign of weakness when, in many cases, it’s the magic word that opens the door to a negotiated settlement.

As an example, Pirie cites a case he mediated over a special dress. A woman took the dress to a tailor for alterations, but when she picked it up, it didn’t fit. “She felt the dress had been ruined,” says Pirie. “It resulted in an enormous altercation, shouting in a public space.” Before the two parties could speak civilly to each other, he encouraged them both to apologize.

“Eventually, mutual apologies were exchanged. She was sorry she acted that way, and he was sorry for his part, too. As soon as that was done, they dealt with the other issue almost without my assistance,” he says.

In her book The New Lawyer: How Settlement is Transforming the Practice of Law, University of Windsor law professor Julie Macfarlane describes the “new lawyer” as someone who can step out of the traditional role of lawyer-in-charge and work collaboratively with the client. Less pit bull and more guide dog. The lawyer as fighter and settler in equal measure, who understands “when to take one [hat] off and put the other on ... or even when both hats need to be worn at the same time.”

It shatters the myth that lawyers must be tough and antagonistic to reach a successful outcome. “It’s a mindset that must be overcome,” says Francois Beaulieu, a former litigator and federal prosecutor now working as a solicitor for the city of Saint John, N.B. “I realized that in law school I was formed to be a litigator, not a negotiator. I didn’t know how to deal with emotions or how to communicate with my client. I found a real disconnect there.”

Beaulieu recalls an acrimonious divorce in which he was so intent on winning his first case against a more experienced lawyer that he failed to understand the needs of his client. His own emotions took control. It sabotaged the negotiation and, after three and a half years of failed negotiations, the case was settled at trial.

“I got so entrenched, not between [my client] and her husband, but between me and the other lawyer, that it became a competition. I could not control my own emotions,” he says. “There were no winners in that case.”

However, he observed that his brother, a sales representative for an international company, was a successful negotiator and took ongoing courses to augment his skills. Eager to learn more, Beaulieu completed a Masters in negotiation skills at Osgoode Hall, for which he designed a course in negotiations that he now teaches at the University of New Brunswick’s faculty of law.

He was recently commissioned by the Law Society of New Brunswick to design a negotiation module for the bar admission course. “With the knowledge that I have now, I would have done things quite differently,” he says in hindsight.

Shifting from acrimony to accord

In Canada an estimated 90% or more of civil and commercial litigations are settled before trial. The courts are encouraging this trend with mandatory mediation, settlement conferences and restorative justice processes. Clients are demanding legal procedures that are quicker and less expensive, in which they assist in shaping the outcomes. Law schools have added the theory and practice of alternative dispute resolution to their curriculums. A new generation of lawyers is prepared to do things differently.

It’s a significant shift since Pirie began introducing these concepts in his classes at UVic. “In the early days, there was a lot of resistance, particularly to the idea of facilitated negotiation,” he says. “In the last 20 years, there’s been an explosion of interest. Now, the modern lawyer and graduating law students understand the significance of this process to the work they do.”

And they’re acquiring the skills to meet this new reality, both in law school and in their personal interactions. “I think this generation is generally more self-aware than when I was in law school 13 years ago, and the reason is probably the education their parents provided to them. They’re more talkative and they communicate more effectively,” says Beaulieu of his students at UNB.

In his classes, he uses examples and exercises that have little to do with the law in order to illustrate the universal principles of effective negotiation. Here are some tips gleaned from the experience of the pros:

Tip #1: It’s not about you. Leave your ego at the door. It’s not about winning the case, but achieving a good outcome for your client. “Winning is ?? an old-fashioned concept. Yes, I want to win. But that’s not my client’s position, that’s my own ego,” says  Whyte. “You’ve got to maintain your objectivity.”

Tip #2: Unravel the emotional patchwork. Start with your client’s emotions, then your own, then those of the opposing party. Once you identify the myriad emotions at the table and their triggers, you’re better equipped to unravel their grip.

Tip #3: Listen without bias. Listen intently even if you don’t agree, because if you don’t fully understand the issues, you may never find the grounds for agreement. Empathy is not about taking sides, but about compassion and understanding.

Tip #4: Listen with all your senses. Active listening involves all the senses - smelling, tasting, seeing, feeling - the non-verbal communication.

Tip #5: Look for the root cause of the conflict. It’s easy to treat an obvious symptom but it takes work to uncover the underlying cause of distress. “The analogy is the doctor who prescribes anti-depressants without exploring the root cause of the depression,” says Beaulieu. “The problem hasn’t gone away.”

Tip #6: Don’t just put yourself in their shoes - switch shoes. You want to fully understand the issues on the other side of the table, and vice versa. Be as open and honest as you want them to be.

“The mark of a good negotiator is somebody that’s got the trust of the other side. They may not agree with you, but they trust you are sharing with them all the issues that you feel are important,” says Whyte. “That requires a lot of disclosure, and sometimes the parties are uncomfortable with that. Building that trust right off the bat is important.”

Tip #7: Don’t get personal, or, Separate the problem from the person. If you don’t like someone, or someone rubs you the wrong way, or you feel personally slighted, let it go. Remember, the problem is not the person. Power lies in controlling your emotions, not allowing them to control you.

“Take the high road,” says Whyte, a veteran of tough labour negotiations. “Don’t respond to a personal attack with a counter personal attack. That doesn’t get you anywhere and turns over control to the other side.”

Tip #8: Take a break. There was a time, says Whyte, when it was acceptable to take a good long drag on a cigarette to defuse a moment of tension or to ponder your response. We won’t bemoan the end of that era, but find another good excuse to take a short, strategic break.

Tip #9: Be prepared. “It’s a process, not an event,” says Pirie. Identify the stages in the process and prepare for each one. This includes identifying your best alternative outcome should negotiations fail. This “best alternative” provides a benchmark for what you wish to achieve through negotiation, and will help you decide if it’s time to pull the plug.

Tip #10: Take a course/read up on alternative dispute resolution. Whether you learned these techniques in law school or on the job, there’s always room for expanded knowledge. Alternative dispute resolution is a dynamic field, with new information and updated theory generated annually.   

But it’s not rocket science

Like most practical skills, the ability to negotiate is honed with time and experience. But it is by no means the purview of a few select practitioners. Negotiation skills have long been in every lawyer’s “toolbox” whether discussing a course of legal action with a client or deciding the next vacation destination with a spouse. You do it every day.

“Negotiation has always been part of being a lawyer,” says Pirie. “But many of them were negotiating in a vacuum because they had no formal education in negotiation skills. As the field has developed, we’ve discovered there’s a lot to be learned.”

 Amy Jo Ehman is a freelance writer based in Saskatoon.