Back To Basics: Legal Negotiation Explained
Estimated reading time: 3 minutes, 29 seconds
Recently, the Bar Standards Board (BSB) and the Law Society have discussed making negotiation a mandatory undergraduate course module and making it part of professional training.
As law students, it might be a good time to get to grips with exactly what legal negotiation is and what this shift in the curriculum might mean for your studies.
Rationale Behind This Move
There are a number of factors influencing the BSB and Law Society’s decision to make negotiation and alternative dispute resolution (ADR) part of the traditional timetable for law students:
- It is one of the biggest legal growth markets in the UK (over 400% in 5 years)
- It is more affordable with more desirable results then litigation
- A case can be settled in one day over 70% of the time.
- It is a legal consideration prior to litigation
- The government is placing greater resources behind it.
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Having been on the Harvard Negotiation Project, I had the chance to develop my practical skills in negotiation outside of the classroom. Here are some tips I picked up that I hope will be of use to you.
1. We are all negotiators
Take the discussion over who is washing the dishes tonight. Or, who decides what to watch on TV? All of these are examples of negotiation in different forms. They require the use of soft and hard power, the use of words and the use of force, the carrot and the stick.
In legal studies, negotiation focuses on soft power or persuasive arguments using evidence and reason. Whereas hard power – threats – are not used as they can be considered as duress and make negotiations settled invalid.
What legal studies uses more is negotiation strategy which boils down to “competitive, collaborative and co-operative”. In other words , this means applying both a hard stance to negotiations and taking a soft stance to negotiations when applicable.
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2. Know the bottom line
What do you want to achieve, what could you lose?
In negotiation, there’s a cost benefit between what you are trying to achieve and what you are willing to lose to achieve that.
Negotiation is about reaching a point of agreement and compromise for the parties between the point they walk and settle.
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3. Knowledge is power
Negotiations exist on a sliding scale. They are bargaining in its purest form, like a buyer and a seller in a Turkish bazar. The seller wants to make the most profit, the buyer the best bargain. If the seller knew the higher amount the buyer would pay, they could get the max profit, equally, if the buyer knew the lowest price he could get, he could get the best bargain.
In legal settings, this could be the difference between what a defendant will pay out or do and what a claimant is seeking or willing to settle for.
In law, it’s required that clients be made aware of the BATNA (Best Alternative to Negotiated Agreement) and WATNA (Worst Alternative to Negotiated Agreement). Essentially, BATNA is the point at which it is better to go to court for a better return and WATNA the worst-case scenario of going to court.
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Understanding the general legal process is useful in order to apply it flexibly. Try to understand how to defuse a situation, the emotion at play, and learn how to write contract and develop soft skills to get you ready for the course. The scope of negotiation is wider than what undergraduate law teaches, and understanding this will help better prepare you for a legal career.
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Author: Cameron Haden