From Harvey Spector, the bullish litigator in the American legal drama ‘Suits’ to Theresa May describing herself as a “bloody difficult woman”, everywhere we turn, we are inundated with a confrontational, chest-beating style of negotiation.
Recently I attended a CEDR Negotiation Theatre at Lloyd’s Market Association, structured around an insurance negotiation and as well as furthering my knowledge on commercial negotiation, it prompted me to reflect more widely about how we negotiate.
The theatre started with a run through of a typically poor way of starting a joint session. The opening statements from both role-players (insurance negotiator and lawyer) reflected much of what we see on TV and from our politicians. They were aggressive, cold, uncooperative and dismissive. They regurgitated the same old generic negotiation tag lines: “take it or leave it”, “this is the bottom line” and “this offer isn’t worth the paper it is written on”. Unsurprisingly, the negotiation did not progress and neither side achieved anything. Contrast this with the opening statements take-two which were done using a more open and co-operative approach and the difference in outcome was demonstrable. Leaving the bravado at the door, we instead witnessed a professional, more cordial exchange which focused on: what was possible; what both sides wanted to achieve and what was at the heart of the dispute.
Andy Grossman, CEDR Director and the theatre moderator stressed here that taking this more co-operative approach does not mean rolling over or giving in on your interests, quite the opposite in fact. By establishing a platform for co-operation, you are more likely to firstly settle the dispute and secondly, walk away from the table with something rather than nothing. It is also worth noting that failed negotiations might progress to a lengthy and costly lawsuit.
Another aspect that struck me was that negotiating is a process. Following the opening sessions, the best negotiators move through an exploration phase, where the skilled negotiator gains information and explores drivers. Only after that is it prudent to progress towards bargaining. As demonstrated, there is a tendency to bypass exploration and plough through to bargaining or offer-making. The result? Insult offers were proposed by both sides, firmly cementing polarised positions rendering the possibility for settlement near impossible. However, if parties take exploration seriously and make a candid, concerted effort to understand the dispute both in general and from the perspective of the other side, credible offers can be proposed from which sensible and structured bargaining can take place.
My overriding impression from the theatre was the changing negotiation landscape and the fact that there is now a burgeoning need to have a more co-operative negotiation mindset. I spoke with one attendee who told me her prevailing experience with negotiation was hostile. Working in compliance, she stated that the instinct of many negotiators was to adopt an aggressive, boorish stance. She welcomed this initiative as a challenge to long held views on negotiation practice and an opportunity to impart a new skill set and instil a new mentality.
Undoubtedly Hollywood will persist with the one-liner, ‘manly’ negotiating. That we can forgive – it grabs the ratings after all! But we should demand more from our politicians, colleagues and negotiating counter-parts.
On a matter as important as the Brexit negotiations, the underlying approach should shift from issuing threats and posturing over what is not possible to a collaborative framework. Case and point, the issue of residency rights for EU nationals living in the U.K. Ultimately, their status will be protected so a unilateral, early guarantee would be a tremendous gesture of good will and would set the tone for the rest of the negotiations.
Turning to commercial negotiations, I spoke with Jason Reeves from Zelle LLP following the event and he feels the sun is setting on the virile negotiator. Undoubtedly some will persist, head-down, but they will be outclassed by more skilled negotiators, able to better handle disputes.
The day of the macho litigator is, if not fully over, dying.
The negotiation theatre took place on 12th May and was moderated by Andy Grossman, CEDR Director and performed by Jason Reeves, partner Zelle LLP and CEDR mediator and Stephen Bate, Barrister, 5RB Chambers and CEDR Chambers mediator.
By Ben Thomson