Negotiation: the art of compromising positions | Opinion | The Lawyer

Negotiation: the art of compromising positions | Opinion | The Lawyer

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Lawyers are good at digging in. We’re good at coming up with arguments as to why a point should not be conceded. We can talk for a long time too. And whilst a negotiation like this unfolds we can even tell ourselves that we’re doing a good job for our clients by protecting their position. But what can be forgotten, is that we’re not protecting our client’s position by making it very difficult for them to do the deal, certainly within a reasonable timescale. Legal hot air can extinguish the oxygen in the negotiation room with near fatal consequences for the transaction. When this happens, lawyers have forgotten their clients’ instructions and arguably our professional duties - to help our client get the deal done.

Deals and commercial agreements are about risk allocation. Of course, there are risks lawyers will always want to (and should) avoid for their client and to an extent risk allocation will depend on negotiation positions. But negotiation is a rare example of a situation where it is not embarrassing to be caught in a compromising position. Indeed, in a negotiation it is more embarrassing to be caught in a non-compromising position than in a compromising one. If lawyers try to over-allocate risk to the other party to a negotiation then we actually fail to do the best job for our clients for the reasons articulated above - and that is embarrassing.

To sum up, good lawyers breathe oxygen into a negotiation, less good ones exhale hot air. Any similarities between the behaviours referred to in this post and real life lawyers are, of course, purely co-incidental. And if you ever catch me negotiating in a manner that is inconsistent with this post then, naturally, I assure you that will be the justified exception that proves the rule.

Tim Bratton is general counsel at FT."