LARRY CRUMP* AND JEFF GIDDINGSX
Almost all lawyers1 are involved in professional negotiations on a regular basis.
The contexts of such negotiations can vary greatly but there are important
similarities in terms of acting as an agent for a client, owing ethical
responsibilities to that client and others, as well as conducting the negotiation
within a law-related framework. Legal negotiations tend to be linked either to a
particular piece of potential or actual litigation or to the facilitation of some type
The skills that a legal negotiator should bring to a negotiation include knowledge
of how legal processes are likely to impact on the dispute or transaction in
question, including issues of proof, delay and costs. The lawyer needs to possess
an informed understanding of their client’s interests and concerns and the
strengths and weaknesses of the client’s legal position. Having reality-tested the
client’s views and assertions, the legal negotiator needs to maintain a relatively
objective perspective, being prepared to consider proposals and viewpoints that
would be summarily rejected by a party unable to accept that there may be other
perspectives, and a need for creativity and compromise in order to reach an
agreement. The lawyer also requires the ability to effectively and accurately put
any agreement reached into writing.
The importance of legal negotiation skills can be usefully illustrated through
reference to Gerald Williams’ classic 1982 study of the negotiation actions of
lawyers in Iowa, USA.3 Williams had 20 pairs of lawyers negotiate a personal
injury claim involving exactly the same set of materials. The variation in
approaches taken and outcomes achieved were striking. Seventeen of the 20 pairs
reached agreement with the sum payable by the defendant varying from $15,000
to $95,000.4 A more than six-fold difference in the settlement reached on the
same set of ‘facts’ demonstrates the importance of the skills and the strategic
choices of each negotiator.
This article considers the decisions lawyers make regarding strategies to be used
in any negotiation. Much has already been written on both the merits and the
mechanics of different strategies yet the issue of how to choose between those
strategies warrants further attention. Choice of strategy is critical because no
single strategy will be effective in relation to all negotiations. A range of
important factors should be considered when deciding on strategy.