Since 2022, I have taught negotiation to trainee lawyers at the École de formation du Barreau de Paris (EFB, the Paris bar school), both in practical workshops and in its international program. In October 2023, I led the oral advocacy day, “Litigating or negotiating the same case: two different stances,” with Audric Dupuis. Here are the key takeaways, with selected excerpts from the training materials.
Lawyers negotiate every day
Negotiation is everywhere in a lawyer’s practice: before litigation, with a formal demand letter or a settlement agreement; between lawyers, over deadlines and the exchange of documents; in criminal matters; in business law; in amicable dispute resolution. It works on three levels: strategy, the science of the client’s objectives; tactics, the science of means; and technique, meaning the tools and the process.
Negotiation is needed when you cannot reach your goals on your own, when the relationship must be preserved, or when the outcome of litigation is too uncertain, too slow or too costly. The challenge is to strike a balance between opening up, at the risk of conceding too much, and closing off, at the risk of damaging the relationship.
No negotiation without preparation
Preparation covers the players, the terrain, the balance of power and each side’s objectives. It is psychological (managing stress, knowing your own limits) as much as technical: assessing the weight, choice, information, time and sanction available to each party, planning concessions and anticipating objections.
Objectives are set at three levels: the aspiration point, the zone of compromise and the resistance point. Above all, you must define your BATNA, the best alternative to a negotiated agreement (MESORE in French). It keeps you from accepting a deal you should refuse and tells you the last acceptable solution. Never reveal that alternative: the other side would turn it into its maximum goal.
The tools, and their ethical limit
Trainees practice active listening, questioning, the four forms of reformulation, nonviolent communication and body language (proxemics, posture, tone, mirroring, congruence). They also learn to recognize influence and persuasion techniques, from the foot-in-the-door to the decoy concession, so as not to fall for them.
These techniques operate within a framework: lawyers negotiate under the essential principles of the profession set out in Article 1.3 of the national rules of the French legal profession (RIN, Règlement intérieur national), with fairness toward opposing counsel even from a position of strength. Persuading, highlighting, buying time is legitimate; lying about a fact or the law never is.
Litigating or negotiating the same case: two different stances
The international program’s oral advocacy day put trainees in front of a choice. In a situation invented for the purpose, two equal partners in a consulting company are splitting up; one wants to keep the clients, the other to launch a mediation center. Each lawyer was instructed to reach an agreement at a negotiation meeting or, failing that, to argue the case in court. The exercise shows that preparing for a hearing and preparing for a negotiation require the same rigor, and that knowing the litigation gives negotiation its strength.
In 2025, the case studies also included an international divorce invented for the purpose, between Paris and New York: the mother and children returning to France, a separation-of-property marriage contract, a compensatory payment (prestation compensatoire), pension funds. The goal: an agreement in principle on the consequences of the divorce, with a view to a divorce by mutual consent agreement.
Sessions
- October 2022International program: two classes on negotiation, based on a French-German divorce case.
- February 2023Negotiation workshops for EFB trainee lawyers.
- October 18, 2023International program: “Negotiation” class.
- October 31, 2023International program, oral advocacy day: “Litigating or negotiating the same case: two different stances,” with Audric Dupuis.
- October 20, 2025International program: review of the fundamentals and case studies.
- September 8, 2026International program: introduction to negotiation, techniques, strategy and the lawyer-negotiator’s stance.
Key takeaways
- 1Strategy, tactics, techniqueThe client’s objectives determine the means, and the means determine the tools.
- 2Preparation comes firstObjectives, BATNA and the other side’s frame of reference are worked out before the first meeting.
- 3Listen and askActive listening and reformulation structure the exchange better than argument does.
- 4Fairness firstFairness toward opposing counsel always takes precedence over short-term gain.
- 5Negotiate while ready to litigateKnowing the likely outcome in court is what gives negotiation its strength.
Training excerpts
Selected excerpts from the training materials “Introduction to negotiation” (15 slides). View online; enter your details to download the PDF.
General information. This account of a talk reflects only my personal opinion and is not legal advice. The cases mentioned are fictional, or inspired by real cases, modified and anonymized.