Are you in the water with a dolphin or a shark?
A fascinating, recently published piece of research1 demonstrated that up to a third of respondents in three US surveys were potentially at risk from taking decisions in the course of legal negotiations that would be judged unethical or even fraudulent.
Rather than attribute this to deliberate unethical behaviour, the research suggest that many attorneys are caught in day-to-day dilemmas. The authors go on to recommend a number of remedies to address these challenges including a more rigorous approach to the negotiation process to protect against inappropriate or deceptive behaviours.
The research very much chimes with key issues that we encounter when working with lawyers across the globe. Whether the focus is on fee negotiation (as in our work) or general legal negotiations (as described in the research), we believe that there are a number of common themes and best practice approaches that are critical to the long term success of lawyers.
Know if you are in the water with a dolphin or a shark
One of the key attributes of outstanding negotiators is their ability to continuously assess their counterparts and to determine if they are ‘dolphins’, that is, trustworthy and willing to invest in a long term relationship, or ‘sharks’, that is, just out for a quick win.2 We rarely get to choose who we are going to be facing across the table, but good negotiators will interact very differently with either type of counterpart or their variants along the spectrum. Negotiations with dolphins can be more cooperative and creative, sometimes even gentle. In such cases negotiators are often well served by an approach that can be described as ‘give’ in order to ‘get’ in a managed but constructive approach.
When dealing with sharks, however, negotiators need to be far more robust and not give anything unless something is ‘gotten’ in return and even then, the negotiator will have to verify that this something is real and worth getting.
Few counterparts (or clients) are purely shark or dolphin or always remain at one extreme of this spectrum. Good negotiators therefore learn to be flexible, to monitor their counterpart constantly and to respond as appropriate.
Engage fully in information exchange
An almost universal mistake we encounter in our fee negotiation workshops is that participants usually cannot wait to get to the core of a negotiation and consequently rush to get an opening position on the table, either by presenting their position or by demanding that the other side should do so. This can be a fatal mistake as often neither party is in full possession of all material facts at this stage.
The early phases of a negotiation should be focused on exchanging information. Rather than just provide information (ie, tell) or pose questions (ie, ask) there should be a balance between information given and information received. Monitoring this two way information flow and analysing the counterpart’s willingness to share information can be an invaluable indicator of whether the counterpart is a shark (not interested) or a dolphin (happy to share) or somewhere in between.
The other benefit of actively engaging in full information exchange is that it raises the likelihood of finding a creative approach to resolving a dispute or other legal issues that would create a better outcome for both parties. Known as integrative negotiation, this is usually the source of significant added value to clients (and hence hopefully their lawyers).
Extensive research evidence demonstrates that great negotiators are made, not born. Good negotiation can be learned but also needs to be practiced. The recent research suggests that it is in the long term interests of the professions and of law firm management teams to dedicate appropriate time and resources in developing these essential skills.
* Ori Wiener is a partner at Møller PSF Group, Cambridge, one of the leading consulting firms to the legal profession. He is based in Frankfurt, Germany. His recently published book High Impact Fee Negotiation and Management for Professionals provides many additional tips and techniques in relation to negotiation and profitability management.
1. A Hinshaw, P Reilly and A K Schneider, ‘Attorneys and Negotiation Ethics: A Material Misunderstanding?’ (2013) Negotiation Journal, 29: 265–287.
2. For more information, see Ori Wiener, High Impact Fee Negotiation and Fee Management for Professionals. London: Kogan Page, 2013.
A longer version of this article was first published in the IBA Law Firm Management Committee newsletter September 2013
© Ori Wiener, MPSFG 2013