ADR Series Part 3 – Negotiation and the Insecurities over Losing Control

This post is written by guest bloggers Bill Jack and Behka Sitterly.

The ultimate challenge for the Spiritual Warrior is relinquishing control. – Book of Runes

Face it. Trial lawyers go to law school in large part because they are competitive control freaks. They dream of being warriors ready to do battle in courtrooms all over the country,  aggressive, lightening-quick on their feet, brandishing sheafs of victory verdicts as testaments to their raw power.

Except that few graduates ever go to trial or see the inside of a courtroom, and instead become “Get Ready for Trial” lawyers buried in deposition conference rooms and discovery disputes. 95%+ of civil cases settle short of trial, thus requiring a much different set of skills that does not depend on a competitive negotiation style.

A spiritual warrior, referred to in the Book of Runes, develops a set of skills based on relinquishing control that—counter-intuitively—fosters focus and strength. These are the kinds of skills a successful negotiator needs to master.

Here are some thoughts:

1. Every successful negotiator has to have the confidence and courage to know they can go to trial, acquit themselves well, and take a verdict. In this age of disappearing jury trials, that means using NITA trial advocacy programs or trying to find trial experience any place they can.
2. To be successful at negotiation, the lawyer needs to be prepared to relinquish control over information sought by the other side, sometimes over the client (especially in a mediation setting), and, worst of all, over having to listen to (and hear) the other side’s viewpoints. A primary goal of negotiation is to gather information, and that requires ceding control to the other side—or at least to the mediator.
3. Relinquishing control also requires moving from a competitive, aggressive style to a more collaborative, problem-solving strategy, working together with the opposition and/or the mediator to find a mutually advantageous result. Almost by definition, that cannot be done if the lawyer’s only speed is turbo Rambo. Rats. Whatever happened to win at all costs?
4. The really good negotiator spends time not on the question of whether to relinquish control but when and how to do it to their client’s advantage. That is the true art of negotiation.
5. Finally, the ultimate relinquishment of control in the ADR setting is realizing that a successful resolution of a dispute is not about “winning” or “losing”, it is about finding a path to resolution—making today’s lawyer a different breed of warrior, but one that is no less powerful.

Read previous posts in this series here:

• Post 1 - Introducing ADR month! written by Travis Caldwell
• Post 2 - Mediation and Endless Curiosity written by Shahrad Milanfar

Come back for the last two posts in this series:

• Post 4 - Arbitration and the Art of Witness Examination, written by Christina Habas, scheduled to be published on January, 23rd.
• Post 5 - ADR in studio71: An Interview with Karen M. Lockwood, scheduled to be published on January, 30th.