Mastering the skill of negotiation

By Lianne Hall

Most lawyers, regardless of their speciality, must negotiate. All interact with a wide variety of people: clients, opposing counsel, colleagues in their own firm, government departments or NGOs.

A new subject in the Melbourne Law Masters is aiming to improve participants' understanding of negotiation. Florrie Darwin, who teaches in the flagship Negotiation Workshop at Harvard Law School and taught in this year's Melbourne Law Masters program, will visit Melbourne again next year to teach the theory and practice of negotiation. 

Harvard's negotiation program has helped law students, and also lawyers, judges, government officials and business executives, to improve their understanding of negotiation and to become better negotiators. As for the workshop's standing with law students, it is the rock star of law subjects.

"Gratifyingly to us, the Negotiation Workshop at Harvard Law School is extremely popular. In the last few years the waiting list has been in the hundreds!" says Florrie.

"My sense from student feedback is that the workshop is special to students because it enhances the way that they approach one of life's most common yet most challenging activities: trying to persuade or come to an agreement with a party whose preferences may differ from your own—in other words, negotiation."

Florrie has taught the skills of negotiation at universities around the world, including the University of Freiburg, University of St.Gallen, University of Lucerne and Georgetown University Law Center. This year she brought negotiation training to Melbourne with an inaugural intensive in the Melbourne Law Masters and a presentation at the Federal Court of Australia.

Florrie says that interacting with other people is at the kernel of everyday work for legal professionals, and that improving negotiation skills can help avoid unnecessarily contentious differences.

"If lawyers simply recognize that their interactions with their clients, for example, ARE negotiations, and if they prepare for them as they would for any negotiation in a systematic way, there will be fewer disgruntled clients and exasperated lawyers."

Preparing for a negotiation, engaging others in joint problem solving, selecting appropriate strategies when negotiations go off track: these are just some of the skills to be taught in the 2015 Masters subject, Negotiation Skills.

The assumption that in order to be effective a negotiator needs to persuade with skilful arguments is one that Florrie is quick to dispel. Rather, empathy or the ability to see a situation from another's perspective is the key quality she recommends for a lawyer's skill set.

"Except in certain formal situations — such as preparing a brief in litigation — I would suggest that clever arguments are not what persuade others…What is effective for persuasion is understanding what's important to the other party or parties — What do they need? What do they want to avoid? What do they care about? — and coming up with possibilities for trade-offs that benefit both parties as well as possible. If you can't identify how a proposal you make will satisfy the other side's needs, it's unlikely that you'll be persuasive."

"So the critical change in thinking is to shift from viewing negotiation as a fight or contest, won by manipulation and power, to treating it as a joint problem-solving activity, where an agreement is based on finding the most efficient and valuable way of satisfying all the parties' interests."

Florrie is looking forward to returning to Melbourne to share negotiation techniques with new audiences. "I fell totally in love with the city. Even after a short stay, it's easy to understand why Melbourne leads so many lists of the world's best cities to live in!"

This article originally appeared in MLS News, Issue 12, October 2014.