ADR and Negotiation: Building Relationships as We Negotiate

Introduction: Relationships in Legal Negotiation

As individuals, transactional attorneys, or litigators, lawyers must develop and in some instances maintain relationships despite substantive differences and opposing positions. Getting Together: Building Relationships as We Negotiate focuses on common misconceptions in relationship building and on how to develop productive relations during the often adversarial negotiation process. Roger Fisher & Scott Brown, Getting Together: Building Relationships as We Negotiate (2d ed. 1988). The authors emphasize that too often individuals expect relationships to be founded on reciprocity and on having one's interests accommodated — even at the expense of the relationship itself. Fisher and Brown explain, however, that the relationship should be treated separately from the substantive disagreement. They argue that the key to negotiating a comfortable compromise requires the parties to focus on five core qualities: rationality, understanding, communication, reliability, and acceptance.

Rationality: Balancing Emotion and Reason

According to the authors, an important component of negotiations is to use emotions as a guide without letting them dominate the decision-making process. As Fisher and Brown state, "when emotions in a relationship dominate thought, we are likely to see a downward spiral of destructive behavior" (p. 46). Yet emotions should not be disregarded entirely. They motivate desires, help one choose a course of action, and foster a sense of attachment to the person or entity one represents. In intentional infliction of emotional distress and negligent infliction of emotional distress tort cases, for instance, emotions and their effect are factors in determining both fault and damages. Cal. Civ. Code § 3333 (2009). Attorneys who can sympathize with their clients' situations are also likely to work harder to secure a favorable judgment and can appeal effectively to a jury's sense of sympathy. Emotions are important in decision-making, but just as courts in IIED cases recognize the damaging effect of overwhelmingly strong conduct on a person's capacity to act, strong emotions in relationships can produce destructive behavior.

Achieving an appropriate balance of emotion and reason can be accomplished by developing an awareness of one's own emotional state and by refraining from reacting when emotions are running high — allowing time to cool down. This notion is recognized in criminal law through the voluntary manslaughter, or heat-of-passion, charge. In that offense, a person reacts quickly to adequate provocation that arouses sudden and intense passion in an ordinary person's mind, causing a loss of self-control before adequate cooling time has elapsed. Cal. Pen. Code § 192 (2009). Although the law acknowledges the overwhelming effect that emotion can have on a person's actions, it also recognizes that those actions are often morally or legally reprehensible, and it therefore punishes individuals who do not allow themselves sufficient time to cool down before acting. The book similarly recommends consulting disinterested third parties before acting to ensure that one is not placing excessive weight on emotions rather than on the substantive issue. Asking a third party to mediate is also a sound method of keeping emotions in check during a discussion (p. 54).

As an attorney, it is important to understand how a client's emotions might become aggravated during proceedings and to counsel the client in advance on how to manage such situations. Whether that means the client agrees not to respond to opposing counsel's remarks, or has a predetermined fall-back answer, will depend on the individual client and the subject matter (pp. 59–60). Additionally, if during contract negotiations one can anticipate whether any statements or contract terms will provoke an emotional response from opposing counsel, one can be prepared not only to remain calm but also to help defuse the opposing counsel's reaction — enabling both sides to negotiate contract terms efficiently.

Understanding: Overcoming Barriers to Knowledge

It is well known that misunderstandings between two parties can easily become deal-breakers. The authors stress the importance of attempting to understand the other side in order to avoid mistakes of fact or partisanship during negotiations. The barriers to understanding include failing to recognize one's own lack of knowledge, fear of being wrong, and not knowing how to develop a better understanding (p. 66). The second barrier is one that each person must learn to overcome individually, but the other two can be addressed through inquiry. This becomes increasingly important in negotiations with foreign entities, since differences in custom, culture, and language create additional sources of misunderstanding (p. 67).

By always assuming that one does not know enough about the other party's position, one can even break through the second barrier. If not knowing enough becomes a constant and accepted state, it will cease to be threatening, and making inquiry will become an easier habit to cultivate. According to the book, understanding another party in negotiations requires stepping outside oneself to learn that party's interests and values while unlearning preconceptions about them (pp. 70–71). A mediator can also be helpful in revealing another party's position and the rationale behind it, for instance by having one party act as the other side — a technique similar to what occurs in war-game exercises (p. 81).