Art of Negotiation Is Not Lost on All Attorneys

Question: I really enjoy your column; it’s very informative and well-written. I’d like to see a column on the appalling lack of negotiating skills in lawyers as a group. They seem to be paper-pushers. They can’t negotiate a settlement. Or won’t. This runs up legal costs and aggravation tremendously. They all need a good course in “getting to yes.” In fact, I’d love to have a list of lawyers who can negotiate so I’d be prepared for my next encounter with an idiot.

Answer: This is not an uncommon complaint about lawyers. Business executives often complain that “lawyers are deal-killers,” that they know only how to say no, not how to find a way to say yes.

First, you have to understand something about the training of lawyers. The case method is used: Law students spend their time reading and then dissecting the published decisions of appellate courts from across the country.

This focuses their attention on disputes. They learn what went wrong, not what went right. Lawyers realize very early that even the most harmonious partnerships and marriages can often end in disaster. And they are trained to wrestle disputes to the ground.

They are trained in litigation techniques and rules of evidence. They learn how to fashion arguments to persuade a judge that their point of view is correct. Much less time is spent in law school on what might be called the “lawyering process”--how to handle a client, how to negotiate a settlement, how to work through the non-legal aspects of a dispute.

In fact, only in the last 10 years or so have lawyering-process or “preventive law” lasses, in which students role-play as clients or adversaries, become accepted widely by the law education Establishment. And they are still not a part of the core curriculum at many schools.

Finding a lawyer who is a skilled negotiator is also a difficult challenge. There is no magic list that sets forth the names of lawyers who are good negotiators, who can step aside from the battle mentality of a lawsuit and realize when it makes sense to settle.

In your initial interview with a lawyer, you can and should, however, ask a lot of questions about settlement that will give you an idea of the lawyer’s negotiating strategy. What proportion of his or her cases settle? When is the best time for proposing settlement? What does the lawyer think about your case: Is it one that might easily settle or are you in for the fight of your life? Answers to questions like these will give you a sense of the lawyer’s outlook and approach in this area.

You might also ask about the use of arbitration or mediation as an alternative approach. A lawyer who is comfortable with those processes, and willing to use them, may have more experience “getting to yes.”

Actually, most lawyers spend most of their day negotiating one thing or another, whether it’s a postponement of a court hearing with an opposing counsel or the wording of a contract.

It’s just hard to know on the surface how good a negotiator a person is until you’re in the heat of battle.