1.5 The Essence of Negotiation

• Library: Negotiating and Drafting Marital Agreements (Virginia CLE) (2023 Ed.)

1.5 THE ESSENCE OF NEGOTIATION

1.501 "Negotiation" Defined.

Negotiation is a field of knowledge and endeavor that focuses on gaining the favor of people from whom we want things. A client's wants may include freedom, money, justice, status, security, and recognition as a person. Negotiation is the use of information and power to affect behavior within a "web of tension."

1.502 Elements of Negotiation.

A. Information.

Negotiations may be affected by an imbalance in the amount of information that each side possesses. How much each attorney knows about the other side's needs as well as the needs of the attorney's own client is an important factor.

B. Time.

Organizational pressures, time constraints, and restrictive deadlines are elements that may affect the negotiating stance of both parties. Counsel should be aware of the opposing attorney's or party's time constraints that may affect their willingness to negotiate.

C. Power.

Power is the capacity or ability to get things done—to control people, events, situations, and oneself. Power is based on perception. However, it is based more on knowledge: the more you know entering into negotiations, the more powerful your position.

1.503 Negotiating Styles and Techniques.

A. Winning at All Costs (The "Win-Lose" Syndrome).

1. Characteristics.

The following are characteristic of the "win-lose" syndrome:

a. Winning is the ultimate and only objective;

b. The attorney seeks to meet his or her own goals at all costs without worrying about the needs of the client; and

c. The other side must be defeated at all costs.

2. Negotiating Steps.

"Win-lose" negotiations typically proceed by the following steps:

a. The attorney always starts with tough demands or ridiculous offers that affect the other side's expectation level;

b. The attorney has little or no authority to make concessions;

c. The attorney may become flushed, talk loudly, or act exasperated or horrified that he or she is being taken advantage of. Occasionally, the attorney will make a dramatic exit from a meeting. Parties also use such methods on each other, particularly the emotional tactics of silence, crying, and laughter;

d. If presented with a concession from the other side, the attorney is unlikely to reciprocate;

e. The attorney delays making any concession, and when he or she finally does, it reflects only a minuscule change in the client's position; and

f. The attorney ignores deadlines and acts as though time is of no significance.

B. Negotiating for Mutual Satisfaction (The "Win-Win" Technique).

1. In General.

Successful collaborative "win-win" negotiation lies in finding out what the other side really wants and showing them a way to get it, while assuring that one's client gets what he or she wants as well. ¹⁷⁷ This approach is consistent with the duty to diligently and competently represent one's client.

2. Approaching the Opponent.

At the outset, the attorney should state the client's case moderately, using a tone that is more reminiscent of velvet than of sandpaper. Opposing counsel should be addressed with tact and concern for his or her dignity. Even obnoxious, negative personalities can be disarmed by an approach that conveys positive expectations.

The issues should be considered from the opposing party's point of view or frame of reference. The attorney should listen with

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