What’s a Lawyer’s Role in Negotiation

Relegated to an attorney for all purposes save the final decision to accept an agreement.3 Essential to the negotiation process is for counsel not to view opposing parties’ attorneys as enemies.4A. Useful TacticsAttorneys implement strategic thinking and tactical analysis to secure a negotiated settlement.5

Importantly, attorneys employ the tactic of concessions to create an atmosphere of cooperation.6 Such concessions are reasoned positional changes occurring through expansive or serial increments during the negotiation for the purpose of securing a final objective.7 Such concessions shift focus from the conceding party to the other party in an effort to stimulate a negotiated result.8

Utilization of concessions as a tactic permits the attorney to appear as problem solver without the risk of the client appearing fickle. Additionally, reiteration of a client’s objective or interest may occur after a concession is proffered thereby backtracking toward one’s desired objective.9

The tactic “reduces the aggregate concession…, but it makes the other side want to finish the negotiation quickly before [the party] stiffens his position anymore or retracts the concessions he had made.”10Perhaps the greatest reason attorneys are employed for negotiation is their ability to exercise control over the discussion concerning the resolution of the dispute. Exercise of restraint through calculated logic and strategy provide the attorney the ability to manage domestic or international negotiations.

Control can be exercised through promulgation of the negotiation’s agenda, circumscription of the place and time of negotiation, use of technology for negotiation, and personal affect (including verbal and nonverbal factors) at the negotiating table.12Use of threats and promises permits an attorney to convey to the other parties information about his own perceived evaluation of the other parties’ interests.

Threats “disclose what the threatener thinks the listener fears,” while promises “indicate what the promisor believes the recipient wants to obtain.”14 Successful threats are those that are “low-key and injected into the dialogue tacitly.”

A subset of threats and promises is brinkmanship, which employs the devices of threats and bluffs to “exploit the burden of negotiation against a side that perceives that it has the burden.”

A tremendous consideration in international business disputes is the participants’ cultural acuities. Culture strikingly affects the manner and method of negotiation. Concisely articulated, culture dictates “the manner in which group members interact with each other and the way in which individuals from different groups relate to one another.”17 Thus, investment in learning about the other disputants’ culture plays a pivotal role in succeeding in negotiations.

Attorneys offer an expertise in researching and identifying cultural differences. Importantly, lawyers may assimilate actual experience with foreign cultures against the backdrop of foreign law.

Comparative legal practitioners possess an advantage in the realm of international business negotiation because, through study of a foreign nation’s law and its meaning to foreign nationals, the comparative practitioner glimpses into the cultural ethos for the codification of such law.

A full discussion of the utility of comparative legal analysis is beyond the scope of the present short article.

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