In this article, we’ll look at the process of negotiation, whether as part of an assessment centre or in real legal practice. We’ll explore the definition and purpose of negotiation, as well as key styles of negotiation and how to use these in practice. We’ll also run through a clear structure to follow in your first negotiations, whichever format they may take.
What is negotiation?
A negotiation is a process by which two or more parties reach an agreement which meets their needs and delivers much of what they want.
In any negotiation, you are sent by or on behalf of your client to reach an agreement with another party, usually based on an issue or transaction in which both parties have interest. This decision-making process involves three key elements: judgement, interdependence and cooperation.
Firstly, judgment. Negotiation is a decision making process in which you are set to use your professional judgement and legal knowledge to bring about an acceptable outcome for both parties, wherever possible. It’s your role to judge before and throughout the negotiation what is important, what is worth pursuing and what is worth parking. The majority of this judgement is planned beforehand by working closely with your client. It’s your responsibility to work out the must-haves, nice-to-haves, and non-important issues.
Secondly, interdependence. Different areas of a negotiation do not live separately- they work holistically, and so should your arguments. For example, if your goal is to negotiate a price for your client, consider how your wants might affect the payee. How might your price affect payment terms? Due dates? Payment forms? Anticipating this in advance can mean the difference between an acceptable and unacceptable result.
Finally, cooperation. A negotiation by definition requires more than one party to reach a solution, but cooperation also covers work between client and consultant, as well as if you are working as part of a team. Good negotiations consider how these relationships could affect the process, as well as how the meeting will run, and how the typical behaviour of each party and negotiator could affect the outcome.
Negotiation styles
Now we’ve covered what a negotiation is, we’ll break down three key negotiation styles as outlined by Fisher and Urie. The style you decide to follow is highly dependent on the negotiating party, as well as your personal experience and communication type. Let’s look in more detail!
Competitive strategy (positional bargaining)
A competitive strategy, also known as positional bargaining, is the most ‘aggressive’ form of negotiation. Competitive strategists treat their opponent as an adversary to be defeated, working to keep the pressure on and possibly putting in argumentative ‘threats’ (‘I’ll leave if I don’t get what I want’) in order to secure a win. This method usually involves refusing concessions to an opponent and focusing on demands, while making no allowances yourself. This method typically misleads around the bottom line, refusing to make it clear what exactly is wanted as a solution. The strategist plays to win, regardless of politeness or professionalism.
With this strategy, the key advantage is being hard to resist. If you’re up against an unprepared ‘opponent’, you are more likely to get an upper hand. However, there is also a high chance that this strategy could alienate an opponent. While you might get the upper hand, you’re less likely to reach a true agreement.
Cooperative style
The most commonly used style by younger or newer lawyers, the cooperate style says it in the title: cooperation is a friendlier, more understanding and mutually beneficial method. A cooperative negotiator aims to avoid contest - but not so much that they’re willing to give up. Cooperative methods focus on finding unilateral concessions in order to reach an agreement and typically include a willingness to disclose the bottom line at the right time. The goal here isn’t ‘winning’, but finding an agreement which is acceptable to both parties.
The benefit of this method is that amongst like-minded individuals, you’re likely to leave the negotiation with everyone happy. However, if you find yourself being endlessly cooperative, you may find yourself in a position that leads to you being taken advantage of (especially if you’re up against a more competitive style).
The principled negotiator
Finally, we have the principled negotiator. This style understands that negotiators are people first. It recognises individual needs and idiosyncrasies. It looks at the interests of each party, as opposed to their stated position, and thinks outside the box by inventing options that allow mutual gain. A typical phrase used to describe this style is ‘making the cake bigger’. Mutual gain, or neutral gain, is the goal - and this negotiator always insists on very objective criteria to meet and argue for those goals. Benefits here include a highly reasoned and hard-to-beat argument, however, this method requires the most upfront planning alongside confidence and experience.
The style of negotiation adopted during each meeting can vary. The key here isn’t necessarily looking at which method to always use, but the method that best suits the goal. The final section of this article will look at the basic structure of a good negotiation.
The basic structure of a good negotiation
A good negotiation is typically structured by the ‘four p’s’: preparation, planning, performance and persuasion. Let’s look a little deeper.
Preparation
A good negotiation starts with what happens on the run-up to the event. Preparation is all about communicating with your client on goals and expectations. What are the must-haves, and nice- to-haves? These give you the key knowledge you need to inform an argument structure, as well as helping you plan in alternatives if you hit a brick wall with another party.
Planning
Next up, planning. With ideas and goals prepped, it’s time to think strategy. Firstly, consider a logical order of points you would like to raise. In reality, you may not be able to follow these completely, but having a guide will help you come at the negotiation with a clear head. A few other things to consider include deciding if you want to open with client terms immediately, and whether you would want to come into the negotiation on a basis of agreed terms first.
Performance
Performance, or executing strategy, covers more than just making your argument. Firstly, set the tone. Small talk is highly underestimated in setting a calm, neutral start, and the offer of tea or coffee is a great way to start with pleasantries and relax both parties. Once discussions are underway, remember not to overtalk. If the other party is doing this, it’s worth stopping and saying ‘let’s summarise where we are so far’. If you make any agreements, be sure to write them down. Remember, always take it professionally, not personally.
Persuasion
Finally, persuasion. Always think within your negotiation - is this what I want for my client? Is this my goal? How can I get closer to my goal? Listen to the other party (make this very obvious) and be sure to keep detailed notes wherever possible. You might even like to repeat back, verbatim, what you have discussed and agreed to throughout.
Final thoughts
Negotiation is a learned skill, and one that adjusts, develops and evolves over time.
For more information on how to develop your negotiation skills, a few great places to check out include Routledge’s Negotiation Guide, this great article from The Law Society and this extended blog by LexusNexus on the art of good negotiation.
With this outline, we hope you can go into your next negotiation with confidence - but remember, there’s always more to learn. Good luck!
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