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PPC trainees learn about successful negotiations

The art of mutual-gains negotiation was the topic of a webinar at the Blackhall Place Law School on Friday (16 September).

The PPC negotiation-skills module highlights many skills required for effective lawyering that can be developed through negotiation practice, such as:

• Problem-solving,
• Conflict resolution,
• Relationship-building,
• Business acumen,
• Collaboration and teamwork,
• Questioning,
• Active listening,
• Decision-making,
• Creativity.

Toby Berkman, of the US-based Consensus Building Institute, and an affiliated faculty member at the Program on Negotiation at Harvard Law School, advised trainees to focus relentlessly on identifying interests.

‘Be unconditionally constructive’

Berkman suggested that parties should be unconditionally constructive. Negotiators were advised to get in the habit of asking lots of questions about the other party’s motivations, and why they might be rejecting an offer that was on the table. 

Mutual-gains negotiation is not the same as being nice, however, Berkman said, and can often involve being quite tough. This could mean naming difficulties in the negotiating relationship and dealing with them. 

Back-up positions

Identify back-up positions, he suggested, with the goal of always maximising joint gains.

When parties value issues differently, there is an opportunity for trade, he said. But the parties should always be clear about their red lines. 

External standards are needed, such as from the law, regulations, or industry standards, to establish the fairness of any negotiated settlement.

The goal is that no one leaves the negotiation feeling cheated, and that fairness can be demonstrated. 

An agreement must also stand the test of time, so it is a mistake to sign off without examining “foreseeable surprises”, or what might go wrong. Time should also be spent drawing up dispute-resolution provisions, Berkman said.

These factors should be structured into a deal, he advised. Deals must also be implementable, he added, and all constituencies must be consulted on their satisfaction with the deal.

Surveys have shown that up to 80% of lawyers will wait and see what the opposing side’s strategy is, and then adopt the same approach.

This gives an opportunity to lead with a collaborative approach, Berkman suggested, although some 20% of parties may still be tricky customers.

Intentions

In those situations, try to get the opposite party to talk about their intentions, options, or interests, because this yields useful information.

But protect yourself and insist on fairness, he advised. 

In a situation of minimum power, making allies or coalition-building is a good long-term strategy, he told the PPC trainees.

But protect yourself and insist on fairness, he advised. 

In a situation of minimum power, making allies or coalition-building is a good long-term strategy, he told the PPC trainees.