Negotiating as a Barrister Negotiation, in law, consists of finding an outcome that is agreeable to both parties. During what is often considered an unseen process, the negotiator is working on getting the best possible outcome for their client. This goal is worked towards by resolving a conflict to the client’s advantage or redefining a situation so that an outcome can be negotiated if possible. This process may often include discussing and negotiating with the client about their expectations and the potential outcomes in order to define the remit of what they wish to achieve and what they would be content with. As Jeffrey H. Hartje says in his article Lawyer’s Skills in Negotiations: Justice in Unseen Hands, “The negotiator is constantly reconciling his goals and attitudes with the aims and instructions of the client.” If the parties are far apart or are not in a position to compromise one side or both sides can decide that they would rather let the court decide the outcome. This is a riskier move as it relates to an unpredictable outcome, but in some circumstances, it may be worthwhile. That is a matter for the individual parties to decide when weighing up the different considerations that would apply in each unique case. In order for negotiations to be successful, a barrister must possess certain skills. “An understanding of timing and context, a knowledge of human behaviour, and a complete understanding of communication skills is essential for a skilled negotiator,” says Jeffrey H. Hartje. Each of these skills is essential for assessing the situation, persuading the other side to agree to terms that are favourable to their client, and to be able to reach a form of compromise that is agreeable to both sides. Timing is a major component of negotiation. As with many aspects of alternative dispute resolution, oftentimes the earlier negotiation can be attempted the better. This may be sometimes because as the more the parties consider that they have invested, financially or emotionally in a dispute, the more entrenched their positions are likely to be and the more difficult it can potentially be to reach a compromise. Timing combined with context allows the lawyer to consider what external factors are at play, which can also lead them to build a creative compromise. Rather than giving the other side exactly what they want, the negotiator can find an alternative solution that would assist each side achieve their ultimate outcome. In order to do so it has been considered that there should be a recognition by every skilled negotiator that part of the main focus is an attempt to solve one another’s problem to reach a compromise if at all possible. If this understanding is not present on both sides, this can often lead to a breakdown in communication which inevitably impacts on the success of a negotiation.
Human behaviour is important to understand, as it works in conjunction with timing to allow a negotiator to read the other person and tailor his or her approach accordingly. It is often evident from the other side’s behaviour or communication style whether they are amenable to a negotiation and/or which particular aspects of the dispute are open for negotiation. Finally as described above communication is the most crucial component of all as it usually forms a major part of persuasion in any setting. Negotiations are not always cut-and-dry. There may be several rounds of back-and-forth discussions between both parties before a suitable compromise is found. However, negotiations can often result in more beneficial outcomes for both sides, and thus, it is an essential skill to be honed by lawyers. If possible, the resolution of a matter outside of court is just as satisfactory as a successful outcome in Court, if not more so, as it usually takes a lesser toll on the individuals involved both emotionally and financially.