The art of negotiation and the power of experience and wisdom
by Peter Rolph, 29 November 2018
Dispute resolution is a process for seeking to resolve differences between two or more parties or groups.
There is often a dispute resolution clause in contracts that prescribes how a disagreement is to be resolved, yet, if there is no such clause, an intermediary may to be employed.
Can you explain dispute resolution in law?
By definition a ‘dispute’ is – two parties who are in two different places, and both wanting different objectives and outcomes. When they have exhausted all direct discussions, a third party is needed in whichever form they choose. I am employed to act to achieve my client’s desired outcomes.
How do you approach a dispute?
I will initially go through all facts with my client, as it’s important to understand what their objectives are. It’s imperative that I understand what they are seeking to achieve from the litigation – and which parts are the most important to them. I ask my client ‘which they would really like to fight for and dig their heels in, what are the ‘must haves’? - and which are not that important?’
Those are key points in any negotiation – if you can negotiate away those less-important aspects, while securing the parts that mean a lot - then that’s a successful negotiation.
As a legal negotiator, what structure do you follow for a successful resolution?
As a mediator, communication is very important in understanding the other parties position and ‘narrowing the gap’ between your client and the other party. You need to understand what your client’s objectives are; but equally you need to understand what the other side’s objectives might be – as you cannot begin to reach an agreement until you realise and understand what that gap is. Then you need to think creatively as to how you may begin to narrow that gap to the position where the two parties can agree on a deal.
Negotiation is in some respect ‘the art of persuasion’; it’s persuading people that it’s in their best interest to negotiate and achieve an outcome that’s acceptable for them.
There’s a whole range of dynamics in negotiation; many want to negotiate but don’t want to lose face. This is a normal reaction! If both parties could agree between themselves, there would be no need for my help in dispute resolution. This then involves finding a solution so that both parties feel that they have both achieved a suitable and positive outcome.
My old boss used to say:
“The best type of negotiation is when both parties feel a little unhappy when it is over.”
He meant that it is very rare that one party achieves and wins 100% of what they wanted, and the other loses everything – because you don’t want that. You would like to get to a position where you understand what their motives are, understand what their outcomes are, and encourage them to move towards that and narrow the gap – without losing face, so that they can leave the process with a feeling that we have taken all the steps to achieve all that the client has wanted to achieve.
People approach dispute resolution in different ways; we need to have a range of negotiation skill sets, as we need to understand the distinctive psyche of both parties. Some junior lawyers see overcoming this as taking an aggressive approach; it is actually the opposite. Aggression is usually counterproductive – some may think that they can ‘beat the other side into submission’, yet in reality it doesn’t work like that. It’s the place of the negotiator to find some complementary ways of negotiating that will appeal to both parties. A good lawyer is often described as a “chameleon” in being able to adapt their style and approach to the parties involved in the dispute.
What is important as a negotiator?
Experience and wisdom. Dispute resolution is a multi-faceted process. The first and most important point in the process is getting your clients trust and confidence in your approach. They must have confidence in you; they have to trust you to represent them – as you are their mouthpiece. You have to understand what they are trying to achieve and understand the dynamics of the negotiation – because a lot of it is factual, but it’s also emotive. A lot of this is because there is now a breakdown of communication, and one party simply can’t talk to the other.
I have often said to clients: “don’t pay me to do something you can do yourself. If you can pick up the phone and talk, then do!” Unfortunately they can’t – it has reached he stage where communication has broken down, so it is my role to re-establish that communication to a productive and agreed outcome.
All this you learn from experience. Young lawyers tend to focus on whether they have won or lost – I feel that you need to be more mature than that. One of the advantages of experience is that you have seen hundreds of scenarios played out and therefore you can almost picture in your mind how that scenario will go – and you have a greater ability to factor in some of the parameters, so you have a greater knowledge base to call upon. This gives you the ability to think more creatively about a solution. Its very rarely a binary solution or a black and white outcome.
How do you deal with situations that can turn quite nasty?
Experience has also taught me to strip out the emotion. It is a huge obstacle. It helps to make the process more neutral. I then look at the commercial benefit. Does the cost justify wasting all this time with emotion? Emotion often gets in the way of logical commercial decision making. Strip it out and concentrate on the facts.
Having experience of dispute resolutions should not be underestimated. It’s a cross between chess and poker. You need to understand the strategy of what is going on, yet you need to be creative and understand your client’s objectives and what they want to achieve. I am not there as a judge, to decide what is right and wrong – I am being paid to present their case for them in a way that is most attractive to them and the other party to ensure I achieve their objectives. If that cannot be achieved I can robustly present their position to a court or other Tribunal.
It’s a complex area of law. It involves negotiation, psychology, salesmanship, and many other skills. Experience and wisdom is the most powerful tool to achieve successful resolutions.
Can you talk about a recent dispute resolution case?
I was working on a case that involved an exit package for a very senior employee and was acting for the company. He had solicitors working for him – negotiating his exit package. It involved salary, reference, the process - and the parties started as far apart as you can imagine. There was a lot of emotion as the employee has been with that business for many years, and in that sense felt like it was ‘his life’. He felt that the directors has stabbed him in the back and pushed him out for no good reason and were motivated by personal animosity.
He came to the negotiations with a very emotional and strong sense of injustice about how he had been treated. We were able to manage his expectations through his solicitor, to move him within the range of commercial reality to achieve an outcome.
It is important to understand that these decisions are not personal. It wasn’t a case of ‘we don’t like you so you have to leave’; it was a business decision – ‘this is what we need to do in order to move the business forward’. They weren’t picking on him, and it is very important to shift that personal and emotional element out of it, and just to look at commercial settlement parameters. We needed to negotiate within these parameters to settle an outcome that works for the client. Managing the parties’ expectation within commercial reality is key.
We had to ask what is most important aspect to him moving forward? A reference might be most important because he needs to get another job and move on. He also clearly wouldn’t want to leave under a black cloud. Managing all of those elements is really important. We achieved a very good settlement for our clients, and he left the process not as bitter and angry as he arrived. I felt he had a better insight as to why things had happened and he understood that it wasn’t a personal vendetta.
What do you enjoy most about dispute resolution?
Firstly, every dispute is different; every client’s circumstance is different, which gives infinite variety. Secondly I feel that there is a great sense of achievement when you have been able to take someone on that journey from the first meeting – really stressed and out of patience – to the end of the process where hopefully the dispute has been resolved. There is a great deal of satisfaction in being able to take them through that journey. Disputes are very disruptive, very emotional – the parties involved tend to have a black cloud over them. To be able to lift that with an effective process is very satisfying.
OUR EXPERTS SHARE THEIR KNOWLEDGE & EXPERIENCE
Changes to the protocol for Construction and Engineering disputes from 9th November 2016
You may hate paperwork but when it comes to the Party Wall etc Act 1996 you should pretend to love it