Barrister's work is not confined to courtroom advocacy. We are often briefed to deploy our advocacy skills to negotiate what can be quite complex commercial settlements.
The need to persuade is common to both settings.
Last month, I had the opportunity to refine those skills when I participated in the Program on Negotiation & Leadership at Harvard University in Cambridge, Massachusetts.
The Harvard Program on Negotiation (PON) is an interdisciplinary research centre dedicated to developing the theory and practice of negotiation and dispute resolution in a range of public and private settings. Based at Harvard Law School, the PON is a consortium program of Harvard University, Massachusetts Institute of Technology, and Tufts University.
The PON regularly holds executive training courses, with participants coming from around the world, from both the for-profit and notfor-profit sectors, as well as a wide range of professions, including business, diplomacy, government, the military, law, and education.
A particular highlight is the diverse participant mix, which creates a dynamic interchange of perspectives and a vast network of new friends and contacts.
To illustrate, my group included not just your expected corporate CEOs, General Counsel and Sales Managers but a large contingent from the US Army's Asymmetric Warfare Group and others involved in diplomacy and nation building. And of course it was great to meet up with the handful of Aussie lawyers and business managers who had made the long trek, just like me.
Getting to 'Yes'
The courses are built around the theory and practice of "Getting to Yes". This has its origins in the highly pragmatic text on the process of negotiation published some 30 years ago called "Getting to Yes: Negotiating Agreement Without Giving In" authored by co-founders of the Harvard Negotiation Project Roger Fisher, William Ury and Bruce Patton. The authors present, step by step, how to find your way to a win-win solution that helps meet your goals, while at the same time preserving the relationship so that any future negotiations also go smoothly.
The PON courses build on those core concepts, informed by years of additional research and their application to increasingly complex commercial, diplomatic and social real world situations.
I illustrate some of the learnings below.
The (in)famous 'BATNA'
In negotiation, BATNA refers to your “best alternative to a negotiated agreement,” or the best outcome you can expect if you fail to reach agreement at the bargaining table with your counterpart.
For many of my clients, their BATNA could well be litigation to final judgment (including any appeals).
An evaluation of your client's BATNA is critical if you are to establish the threshold at which you will advise them to reject an offer of settlement.
Effective negotiators determine their BATNAs before talks begin. When you fail to determine your client's alternative, you are liable to make a costly mistake—rejecting a settlement you should have accepted or accepting one you would have been wise to reject.
In negotiating a settlement, it is important to have high aspirations and to fight hard for a good outcome. But it is just as critical to establish a walkaway point that is firmly grounded in your client's reality.
The PON teaches there are four steps to assessing your client's BATNA:
- list your client's alternatives;
- evaluate these alternatives;
- establish your client's BATNA based on these alternatives; and
- calculate your client's reservation value (the lowest-valued settlement your client is willing to accept).
Put simply, if the value of the settlement proposed is lower than your client's reservation value, your client will be better off rejecting the offer and pursuing its BATNA. If the final offer is higher than your client's reservation value, they should accept it.
Of course, there are many nuanced skills to be developed around this topic. The PON teaches negotiators to:
- be aware that their own BATNA will likely differ from their client's (and their instructing solicitor's, and their client's representative)
- incorporate the likely BATNA of the individual with whom they are negotiating, as well as the BATNA of his/her instructors and client
- track the fluctuating positions of multiple parties involved in a negotiation
- not be overly influenced by the sunk costs of a negotiation.
Building Trust at the Bargaining Table
Skills and tactics for building trust at the bargaining table are also some of the most integral skills negotiators can acquire. The PON urges negotiators to:
- make maximum use of their network in readying your negotiating counterparts
- given the reciprocal nature of trust, build rapport before negotiating (studies show that if others cooperate with us and treat us with respect, we tend to respond in kind)
- set an appropriate trust default (allow trust to build; by establishing a cautious approach to trust from the start—and keeping files of correspondence and key documents up to date—you may be able to avoid contention when difficulties arise)
- win trust (prepare thoroughly by researching the other party’s industry, history, culture, interests; learn the other side's vocabulary; clearly label your most important concessions)
- build trust by listening and acknowledging (by listening closely, you not only educate yourself, you encourage more trust and perceptions that the process itself has been fair and thus more likely to be judged satisfactory).
Post-Settlement Settlement & MESO Strategies
In the types of hard-bargaining, distributive negotiation scenarios, so often seen by barristers and solicitors attempting to resolve a commercial dispute, it can be difficult to shift gears to a more collaborative, win-win negotiation approach. Even people who have been cooperative throughout the process may simply run out of steam (especially at the end of a long day of Court-referred mediation).
The PON teaches that "post-settlement settlements" should work in any setting, yet they are rarely attempted. Whilst it might seem like a rather novel idea (particularly to a lawyer), the PON argues that people should continue to negotiate after coming to agreement.
The way to proceed is for all to accept that their current deal is the foundation for further value creation. A signed deal would become the bird in hand; negotiators would entertain revision if – and only if – it were to everyone’s advantage. With this assurance, people should be more open to revealing their priorities.
As wary as many lawyers might be to the notion of reopening a 'done deal', it echoes the key approach to PON negotiation strategy - i.e. to approach negotiation of deals and disputes as value creation opportunities rather than zero-sum games. A good illustration of that approach is the use of 'MESO' negotiation techniques ("Multiple Equivalent Simultaneous Offers") - identifying mulitple proposals of equal value and presenting them to your counterpart simultaneously. By making tradeoffs across issues, parties can obtain greater value on the issues that are most important to them.
Courses like these are beneficial not only for the new things one can learn, but for giving confidence that the many tactics already being deployed are worthwhile and to be persisted with. Even so, a stack of folders, notes and books accompanied my trip back home! There are a multitude of other ideas still to be reflected upon and digested - there is always scope for refinement.
If you would like to know more about my Harvard Negotiation Project experience or thoughts on negotiation skills and strategies, email: firstname.lastname@example.org.
Date: 6 June 2015
About the Author
Dominique Hogan-Doran is a barrister and accredited commercial mediator, based in Sydney, Australia. She is recommended as a highly trusted & commercial counsel, with the ability to quickly & comprehensively analyse complex commercial issues and provide sound strategic & practical advice that can be implemented efficiently & effectively.
This blog does not constitute legal advice. Liability limited pursuant to a scheme approved under professional standards legislation.