Negotiation is a skill for law and for life. It not only facilitates best outcomes in legal practice, but is also a skill that transfers into just about every aspect of life.
The Latin root of the word suggests hard work by combining neg – “not” with otium – “ease, leisure”. It is easy to understand “not” and “ease” coming together, indicating that negotiation can be complex and slow, made up of back and forth exploring and the exchange of ideas. Negotiation is not always easy.
Since the 1590s, “negotiation” has carried the meaning, “to communicate in search of agreement”. Lawyers are always searching for common ground, even when this is not apparent and nowhere in sight. Many lawyers relish being confronted by ‘wicked problems’ – and come to see these as the chance to demonstrate flair and creativity by crafting solutions from ‘outside the box’.
The word “negotiation” evolves from a business and commercial setting, evoking notions of trafficking and exchange. We barter, we exchange, we haggle – we strive to find common ground. Certainly, when working with disputes and transactions, lawyers are ‘communicating in search of agreement’. This is a different focus from what students learn at law school, which gives almost exclusive focus to the wording of statutes and what judges say when making decisions.
As a rule of thumb, for every 100 disputes filed in court, about 98 will be resolved before a judge gets to rule on a legal solution. The vast majority are resolved by negotiation between lawyers. Whatever else they might do, lawyers are specialist negotiators.
Negotiation is a relational activity – between people or groups of people, from small business or community entities, to nation states. It might last minutes or years. It may or may not yield agreement – often the wisest outcome will be no agreement. How to disagree with courtesy seems strange to those new to the profession. The Leo Cussen PLT/GDLP cultivates this essential capacity for interacting professionally, even within the heat of high emotion and high-stakes disputes.
Practical nous, empathy and a sense of bigger picture goals and context are some of the essential qualities lawyers need to bring to the table. The best lawyer negotiators live, breath and even embody a deep sense of fairness and even wisdom.
My best tip for law students is to cultivate negotiation skills and develop situational awareness for what is really going on in a dispute or transaction, beyond the narrow legal framing of a problem. It is empowering to become good at bringing people together towards reaching agreement – a key skill not only for law, but also for making you a better person, even wise.
Craig Collins, Senior Mentor and Lawyer, Leo Cussen Centre for Law