Law in the Marketplace: The fine art of negotiation

By JOHN CUNNINGHAM

For the Monitor

Published: 01-29-2023 1:36 PM

Indispensable to the competence of lawyers in most or all fields of law — and certainly in my own field of LLC law and tax — is expertise in negotiating issues on behalf of one’s clients. But obviously, this expertise is also indispensable in many other areas of human experience, including marriage, family life and even friendships.

So all of us, not just lawyers, must know how to negotiate effectively. To do so, I suggest the five guidelines below. I’ve derived these guidelines in part from Fisher and Ury’s Getting to Yes, the classic negotiation handbook. But I’ve also derived them from my own decades of negotiation experience and from advice from friends and colleagues.

Identify the facts: Before you engage in a negotiation, make sure you know all of the relevant facts. And during the negotiation, be open to discovering additional facts.

Identify your interests and arguments: If, for financial or personal reasons, the issue to be negotiated will have long-term importance for the parties, prepare for it by identifying not only all of your own interests and arguments concerning the relevant matter but also those of the other party. This may require significant time, labor and, above all, significant empathy. But it will be essential if the negotiation is to succeed.

Be gracious to the other party: This guideline should require no comment.

Be creative: In preparing for the negotiation and engaging in it, be creative — and not only on your own but also jointly with the other party. This may require mutual brainstorming, and the brainstorming may go nowhere and at times may even seem stupid. But it may also lead to a resolution neither party could have imagined.

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Achieve a win-win result: It’s quite possible that by clever negotiation, you can achieve a negotiation result that strongly favors your own interests or those of the party for whom you’re negotiating. But if you want to ensure the enforceability of that result, and, more importantly, if you want a favorable long-term relation with the other party, seek a result that’s patently fair to both parties.

 

 

John Cunningham is a lawyer licensed to practice law in New Hampshire and Massachusetts. He is of counsel to the law firm of McLane Middleton, P.A. Contact him at 856-7172 or lawjmc@comcast.net. His website is llc199a.com. For access to all of his Law in the Marketplace columns, visit concordmonitor.com.

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