I just returned from a weeklong advanced alternative dispute resolution workshop in Toronto, offered through the University of Windsor Faculty of Law and Stitt Feld Handy Group.
I came away feeling that lawyers may sometime lose sight of the great importance of ADR training. Consider the following:
• ADR includes, among other things, the skills of negotiation and mediation.
• Individuals, and especially lawyers, negotiate all of the time. In fact, more than 95 percent of cases that are placed into suit settled before trial.
• Few, if any, lawyers receive training in negotiation while in law school.
• Most highly successful lawyers have learned how to negotiate on the job but they may not follow a conscious framework for preparing and conducting this task.
• This system is designed to help you obtain optimal results for your client and to know when it is best to settle and when it is best to continue on with litigation.
• This framework, when properly used, is also designed to help maintain or enhance the relationship between the parties.
• Becoming a skilled negotiator and mediator will not only help you in your professional life but can assist you in resolving interpersonal conflicts.
Like many learned skills, there is a framework and a system that can be used in assisting one to become a better negotiator and mediator. Harvard Law School designed and developed the interest-based negotiation model that provides a conceptual framework based on seven elements. The framework is designed to assist one in obtaining optimal results.
In addition to having great negotiation skills, it is increasingly important that lawyers understand how to advocate in the context of mediation as opposed to litigation where we are attempting to convince a judge or jury based on legal arguments. In mediation, you will need to convince the other party, not that they are wrong, but that what you are offering them is better than continuing on with the risk, the cost and the great uncertainty of going to court. These skills require a different focus than the type of advocacy used by a scorched-earth litigator.
Many times in a negotiation it is very important to refrain from giving blustery ultimatums and ignoring what the other side wants. If you attempt to approach a negotiation as a game of chicken, and take extreme positions, it will be difficult to reach an agreed-on resolution of the matter. So, what are some of the important things that we can consider in such a situation?
• The main objective of an effective negotiation is to find a path to a better outcome. If you continually refer to the other side as “they” and make accusations, overanalyze past mistakes and constantly allocate the blame to the other party, then you will make it much harder to arrive at a negotiated agreement.
• A negotiation is not always about meeting in the middle. If this were the case, then it would make sense for both parties to start with extreme opening positions. In reality, however, starting with extreme positions doesn’t mean you will end up in the middle. Instead, it often means you could miss the opportunity for a good negotiated settlement and end up in costly and time-consuming litigation that leaves your client worse off.
• While the thought of strategizing, maneuvering, positioning, and ultimately winning the negotiation is indeed exhilarating, you do not want to get so caught up in the process of beating the other side (or “winning”) that you lose sight of the goal, which is achieving the best outcome for your client.
• In most negotiations, fear can be a good motivator. However, anger might polarize the parties and make it harder to reach an agreement. In practical terms, why would you want to insult and anger an adverse party who ultimately has to agree to a resolution in order to resolve the matter before you?
As lawyers, we should always be looking for ways to learn and grow in an effort to better serve our clients. I would suggest that one of the skills we should look to improve on is our ability to become a more effective communicator, negotiator and problem-solver. My time in Toronto was extremely productive and informative. I found this workshop to be an invaluable experience and highly recommend it to any attorney who is interested in enhancing his or her level of expertise and becoming more skilled in negotiating the best outcome possible for their clients.•