Top 10 Negotiation Tips for Commercial Lawyers

Negotiation is part of life: you do it all day, every day.

With your clients about project strategy and payment of fees. With the other side about contractual terms, offers and counteroffers. With colleagues about who will deliver certain tasks and by when. With your employer/employees about salary, benefits and progression.

Some would say the stakes of negotiating at home are even higher than in the workplace. From the mundane (who will empty the dishwasher? which film are we going to watch? have the kids done their homework?) to the major (shall we move? should I take that job? shall we get married? shall we divorce?)

Life in the legal workplace presents a similar barrage of challenges to those at home, yet becoming a skilled negotiator is not something they teach at law school. Most of us fumble along and learn how to negotiate on the job and, in time, develop our own style. However, no matter what stage you are in your career it is always useful to remind yourself of the key skills required to be a good negotiator:

1. Preparation, preparation, preparation

No doubt the mantra “fail to prepare, prepare to fail” was drummed into you at some stage of your academic life and this adage continues to hold true in your professional life. A slick suit and blinding smile won’t get you through a negotiation. Do your homework. Prior to negotiations read and re-read your file, ensuring that you have the facts at your fingertips.

2. Know your client

Make sure that you have a sound grasp of your client, their business and the market they operate in. This will add value to the advice you give. Discuss with your client settlement parameters and walk-away positions in advance of negotiations with the other side and continue to clearly communicate with your client throughout the process.

3. Know your opponent

Effective negotiation also relies on you having good insight into the other side's business as well as their goals, interests and options. By understanding that information, you are better placed to provide your client with strategic advice and negotiate the deal effectively.

4. Allow for wriggle room

Never go in with your ‘best case’ offer straight away. Build in sufficient room to your offer so the other side will feel like they’ve got a good deal. Establishing your offer strategy is not an exact science, but don’t be afraid to make a derisory opening offer (if the situation allows) purely to adjust expectations and frame your later offers as more reasonable.

5. Think one step ahead

Evaluate the potential pitfalls in your case and how you will deal with those in negotiations. It is also important to be flexible in negotiations and adjust your parameters when one approach isn’t working. By looking ahead and analysing the various possible outcomes of your case, you will be able to enter negotiations with an open mind.

6. Silence is golden

It is human instinct to fill awkward silences: in the context of a negotiation this may work in your favour. Silence is one of the strongest statements you can make. Count to ten. By then, the other side will usually have started talking again and in doing so may babble and backtrack.

7. Control the agenda

Don’t be afraid of telling the other side that you need time to consider a proposal with your client. Rushing crucial decisions can prove fatal. If the other side tries to set deadlines that are unrealistic for you and your client, negotiate with them and compromise where possible.

8. Remain professional

The style of negotiation very much depends on the individual and you will develop your own style over time. The best negotiators appear calm, reasoned and well prepared. However, they do not shy away from conflict if necessary but rather deal with it in a firm and unyielding way.

9. Manage your client

This is often the hardest part of a negotiation, especially when dealing with a difficult client who has high and unrealistic expectations. However, remember that you are the lawyer and your job is to advise, even if that advice includes something that your client does not want to hear. It is best practice to be upfront with your client from the outset and manage their expectations. After all, presenting a united front sends out strong signals to the other side.

10. Stay focused

It’s all too easy to take your foot off the gas when headline terms have been agreed, but the really important part is getting the agreement formalised and implemented. After all, the agreement will be scrutinised if there is future litigation so it is in everyone’s interests to get it right.

So what are your top tips for negotiation? Please share your experiences in the comments box below.