There is a commonly held belief that all lawyers live for a fight and a chance to win an argument.
Actually, at McManus & Co, we believe the reverse is true. Most lawyers understand that if you go in with a win/lose mindset, you only have a 50 percent chance of coming out on top. Not great odds.
A big part of what lawyers do when sorting out a client’s dispute is to first examine the interests at play and then look for solutions where our client’s and the other party’s interests are compatible. By listening to and identifying what each parties’ needs and interests are, and exploring different settlement options, the odds of reaching an agreement are a lot better for both parties involved. This applies to both legal issues and just about every other negotiation in life, including who does the dishes. As a bonus, if the negotiations are done well, you may retain some good will with the other party. And if the dispute is of the legal variety, reaching agreement out of Court is going to save you time and money.
There is a well loved 1981 book called ‘Getting to Yes’ by Fisher, Ury and Patton which provides useful tips for how to reach an agreement. First and foremost, forget positional bargaining. When you fix your position from the outset and dig your heels in (‘it’s my way or the highway’) things will be a lot more difficult and, if you don’t get immediate acceptance, you will be forced to either ramp up the argument or find creative ways of backing down (without looking like you’re backing down).
Instead try the following:
- Separate the people from the problem. Put yourself in the other person’s shoes. Look at the issue from their side, taking into account their emotions, values, background and viewpoints. Try to recognize the emotions at play – theirs and yours.
- Focus on interests, not positions. Identify the interest by asking ‘why?’. Why are they wanting this? By identifying the interests, you can look at fulfilling as many interests as possible for both sides. Of course, you’re negotiating purely to serve your own interests but the chance of that increases when you can present the deal as serving theirs too. Be future focused, try not to get stuck in who did what yesterday, but ask ‘what can we do tomorrow?’.
- Invent options for mutual gain. Brainstorm options without judgment – this is not a time to value judge the options but just to see what options are available. Do this with people on your team. Then decide which are the best options to use in negotiations.
- Use objective criteria. What are you trying to achieve in your agreement? Fairness? Fair market value? Professional standards? Once you’ve identified your objective criteria:
- Frame each issue as a joint search for the criteria;
- Reason and be open to reason as to which standards are appropriate; and
- Never yield to pressure, only to principle.
Legal issues can be complex and finding mutually beneficial solutions can be a challenge. However exploring all options first, and having a skilled negotiator assist you will give you the best chance of reaching an agreement.