On March 14, 2023, students at NEOMA Business School interviewed me about negotiation in my practice as a lawyer, using a six-question guide: the client’s misconceptions, preparation, manipulation, representation, the balance of power and emotions. Here are the key takeaways.
Defusing the client’s misconceptions
At the first meeting, clients are often closed to negotiation: they have already tried, the positions are supposedly too far apart, the other side will never be reasonable, offering to negotiate would be a sign of weakness, and they want a lawyer to win in court.
I first ask what they really want, beyond their position: their needs, fears and goals. I explain the limits of litigation (a judge who only rules on legal claims, the cost, the length, the uncertainty, the enforcement difficulties) and the fact that negotiating effectively requires specific skills. An attempt to negotiate first is also viewed favorably by the court: it is not a weakness.
Preparing: from the law to the needs
You never negotiate without proper preparation. I start with an objective legal analysis, which determines the chances of success in court, and therefore the BATNA, the best alternative to a negotiated agreement (MESORE in French), and what can be negotiated. Next come each side’s levers (cost, time, litigation risk), then the client’s needs, values, concerns and fears, while asking opposing counsel to do the same work. Finally, I choose the format: lawyer-to-lawyer exchanges, a joint meeting, a participatory procedure (procédure participative), a collaborative process (processus collaboratif) or mediation.
A lawyer is not a negotiator like any other: professional ethics require good faith and confidentiality. Cultural differences, always present, are heightened in international disputes; co-mediation with a mediator from each country can then bring both cultures to the table.
Countering manipulation, rebalancing power
Three techniques come up often: the ultimatum (“if your client doesn’t accept, I’m going to court”), stalling to create a more favorable situation, and overstating one’s own rights so that an offer looks generous. To spot them, you need to step back and compare with the legal analysis. Once I have identified them, I name them, recall the duty of good faith, then resume the negotiation without taking it personally.
Representation by counsel is supposed to rebalance power, but negotiation must not become a pretext for maintaining domination. When the imbalance is extreme, going to court before negotiating may be necessary: a return application in a child abduction case, a protective measure against delaying tactics. In international cases, filing first in the country where the decision will be most favorable to the client improves the client’s BATNA.
Making room for emotions
You cannot negotiate rationally while overwhelmed by emotion. Emotions need to be named, reflected back and confirmed, with a private side meeting if necessary. This is the turning point of Fiutak’s wheel: expressing emotions allows the move from why to how, from needs to options. The trap is to sweep them under the rug. Between family and commercial cases, the difference is one of degree, never of nature: the anger, fear or sense of betrayal of a business owner facing a breached contract are of the same nature as the emotions in a family case.
Sessions
- March 14, 2023NEOMA Business School: “expert view” interview on negotiation, conducted by students using a six-question interview guide.
Key takeaways
- 1Start from the real needBehind the client’s position lie needs and fears that make an agreement possible.
- 2The law comes firstAn objective legal analysis sets the BATNA and defines what can be negotiated.
- 3Name the manipulationShowing that you have spotted it is often enough to neutralize it.
- 4File in order to negotiateWhen the imbalance is extreme, going to court makes each side face its own risk.
- 5Emotions have their placeExpressing them makes it possible to move from needs to options.
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.