NEOGOTIATION NOT LITIGATION

By SCOTT FLEGAL, Flegal Law Office , PA

We may not realize it, but most of us spend a lot of time in our lives negotiating. As parents, we negotiate with our children. As husbands, we negotiate with our wives. As employees, we negotiate with our bosses. As suppliers, we negotiate with our customers. And as a lawyer, I negotiate with other lawyers. In essence, negotiation is how we get what we want from others.

But despite this ever-present phenomenon in our lives, it is a relatively small number of people that have received training in the art of negotiating. Many people operate under the mistaken assumption that negotiating skills come naturally. For most of us, this just isn't the case.

I was fascinated to see that at the end of the talks between the Boston Red Sox and Alex Rodriquez, John Henry, one of the Red Sox owners and an incredibly successful businessman, admitted that he was not a good negotiator. On the one hand, this sort of admission demonstrates one attribute of Henry's makeup that has no doubt contributed to his success in the business world: he recognizes his weaknesses, as well as his strengths. On the other hand, it is hard to fathom that Henry could attain such a high level of success in the corporate world without a strong set of negotiating skills. Maybe he was playing us.

But many people assume that because they are smart or well-educated, they are good negotiators. It has been my experience, however, that neither brains nor diplomas indicate the presence of excellent negotiation skills. For example, some of the best trial lawyers I know could not negotiate their way out of a paper bag. They are, by nature and by training, warriors. To properly prepare a case for trial they must focus on their client's legal position, and direct all of their energy to strengthening their case. The legal system demands nothing less, and they are bound by their ethics as lawyers to act accordingly.

But this is both a strength and a weakness in our justice system. On the one hand, it insures that people are well represented in court. On the other hand, a lot of cases might settle a lot sooner if trial lawyers were as trained in the art of negotiation as they are in courtroom procedures. The fact is that over 98% of all cases actually filed settle before a final judgment is obtained. As lawyers bound to serve the best interests of our clients, don't we need to ask how many of these cases could have been settled months or years earlier through excellent negotiations?

In the business world, parties are becoming more sophisticated in their approach to negotiations. There are many situations where the parties try hard to make a deal, but just can't get it done. Negotiations can reach an impasse even where all parties agree that a deal should be made. How can this happen? In some instances, it boils down to the simple fact that no matter how the players may try, they are incapable of evaluating their position from a truly objective standpoint. Studies conducted by the Harvard advanced studies on negotiation have confirmed this interesting human psychological characteristic.

Sophisticated business players are now employing mediators to assist them in finalizing deals. This process is known as "facilitated negotiation", and is gaining in popularity by the day. A talented mediator can assist the parties in objectively evaluating their positions, and can work as a neutral to facilitate a deal.

This is an example of using mediation proactively, as a means of either solving a problem before it becomes a legal cause of action, or cementing a business opportunity. Sometimes the introduction of a neutral third party charged with the job of facilitating a resolution of the differences between parties can quickly resolve impasse. To a degree, it is a tactic that accommodates human nature, especially when negotiations have been extensive and the parties have become entrenched in their positions. But good mediators are trained and experienced negotiators, and that characteristic is the one that can make the difference between resolution and conflict.

Law school curriculums are beginning to recognize this issue and are offering more courses in mediation, negotiation techniques and other forms of alternative dispute resolution. There will always be a demand for excellent trial lawyers, because there are some cases that quite simply need to be tried. But in many instances clients might be better served if lawyers recognized the importance of negotiation skills in their practice, and invested the time and money necessary to develop these skills.