Law Practice Essentials

While negotiation is a critical skill for lawyers, the process of negotiation is not a clearly defined process like the other options outlined in this module. At its core, negotiation involves exchanging communications with the aim of reaching a settlement. How that communication looks largely depends on the parties’ preferences and each counsel’s approach.

There is a continuum of how parties may prefer to negotiate their matter. Some parties seek advice from counsel for advice but prefer to negotiate directly with each other. Some may prefer to have a settlement meeting or “four-way meeting” with counsel present but not want to commit to one of the more formal processes described in this lesson. Others may only want to communicate in writing through counsel exchanging proposals or settlement offers. Parties may utilize a combination of some, or all the above approaches to settle their matter.

It is important to inform your client of the benefits and risks of each of these approaches. For instance, while parties who negotiate on their own may perceive that they are saving time and money at the outset, there is a risk that the settlement they reach is unenforceable or doesn’t consider legal, tax or other complexities that are not within their control to deviate from. Having to renegotiate an agreement that is perceived to be undone by counsel can result in clients being frustrated, and they may end up spending more time and money than had they just negotiated with the assistance of counsel. On the other hand, although the exchange of written communication through counsel may be perceived by some clients as the least stressful option, this mode of negotiation can often be a lengthy and expensive process, comparatively speaking.

The other significant factor regarding how a negotiation looks is each counsel’s approach. Some counsel use a positional bargaining approach while others use an interest-based or principled bargaining approach. Difficulties can arise when counsel have different approaches to negotiation, given the inherent divergence on technique and goals associated with the process and outcome.

Completing training to understand the different negotiation approaches and techniques, through your local legal education organization or post-secondary institution, is critical to navigating the many facets of negotiation in a way that best meets your client’s needs.