The Art of Negotiation

Negotiation is a key weapon in any lawyer’s arsenal and it’s a part of the job which I really enjoy; engaging in different tactical plays, predicting your opponent’s next moves and the ongoing assessment of the strengths and weaknesses of both your position and that of your opponent.

It was not therefore surprising that my eldest daughter has a flair for negotiations also. What I was surprised at though was how early this negotiation gene kicks in. My daughter is three years old and will negotiate on anything; the number of bedtime stories she needs so that she does not “accidentally” wake up her sister, the number of sweets required if she is to get me an extra pack of wipes from the next room whilst I am mid way through her sister’s nappy change, or her demands for staying still and not producing an ear-splitting scream whilst having her hair brushed.

Negotiation and litigation

When I negotiate settlements of claims, I try to assess mine and my client’s strengths and weaknesses in addition to those of our opponent to see what is likely to be a reasonable settlement position and then look at tactics to achieve or surpass that position. The same applies to non-litigious matters, for example when seeking employee agreement and support for proposed changes in the workplace or to terms and conditions, or retention incentives.

Litigation is something most clients try to avoid wherever possible. If a claim is raised though, claimants will inevitably be seeking as a much monetary compensation as possible, and respondents will be seeking to minimise any such payments - although one should never underestimate the value of non-monetary settlements. I have always been a bit of a maths geek at heart and relish the opportunity to critique an opponent’s Schedule of Loss, which almost invariably contains errors and/or over or under exaggerated figures. Most lawyers shy away from figures where possible, so this generally gives me the upper hand when negotiating the settlement of a claim.

Parenting and bargaining tactics

My daughter is also keenly aware of her strengths and bargaining position. This primarily appears to centre on her ability to scupper my attempts to usher my children along to get them dressed and ready in the morning or to pack up their toys at night. She sadly holds the upper hand in slowing down progress at every turn, whether that’s the onset of amnesia as to where her left shoe has gone, a sudden need to use the toilet, or that she is in agony and can barely move due to a horrendous cut to her hand (which later transpires to be felt tip).

I, like many parents who reside with their pint-sized dictators (beloved children), have done one of the many things we all swore we never would…caved in and used bribery to get things moving.

The downside to caving in to pressure, either from your children or indeed your employees, is that even the most forgetful person will always recount that one occasion where you agreed to their wishes, and once a precedent has been set it can be difficult to break. My daughter’s elephant-like memory has come back to haunt me on a number of occasions with her recounting, “but mummy yesterday (about three weeks ago) you said that if I sat still whilst having my hair brushed that I was being good and you said good girls get treats. I’ve been a good girl today so that means I’m allowed treats, you said so”.

I can’t fault her logic, and as I try to differentiate the two situations and explain why she cannot have treats every time she is good, she stares back at me with a blank expression. Whilst trying to circumvent a forthcoming Percy Pig induced sugar rush, I pull out that one trump card (which again, we all swore we wouldn’t before having children)…my house, my rules!

I would not advise clients to adopt the same tactic at work, though. Instead, contact us and we can explain your options and the attendant risks, and provide advice on how to resolve the issue in an efficient, professional and legally compliant, and/or commercially sound, way!