"...the role of the negotiating solicitor is to explore settlements which could never be achieved in a Court, to provide ideas for alternatively resolving the dispute which could not be enforced by any Court and to think laterally to promote investigation by the parties of other forms of settlement which they themselves have not contemplated." Discuss.
I INTRODUCTION
ADR procedures, or more exactly, Alternative Dispute Resolution procedures have become popular and widely used in the past two decades to substitute the traditional, time-consuming and expensive process of litigation for resolving disputes. Negotiation is the most fundamental and simple procedure among the various ADR methods. In this article, I will firstly try to analyze briefly why negotiation is preferable to litigation for solving disputes. Then I will focus on the problem-solving approach of negotiation and explain the statement by referring to the process itself frequently. Finally, I will try to analyze whether the statement is a correct outline of the role that a negotiating solicitor should play in negotiation.
II WHY NEGOTIATE?
Everyone has disputes with people around them every day. Many people choose to end up their disputes by going to the court and let the judges to give judgments to their cases. However, we should bear in mind that of all the lawsuits that are filed to courts, 94% of them are eventually settled without trial. Most of them are settled by negotiation or other ADR procedures after the parties found out the huge costs and the time they need to spend by going to courts. Negotiation, on the other hand, has overwhelming advantages to litigation. It saves time and money and is flexible and leaves room for imaginative approaches. Also it can preserve ongoing relationships between the parties. Moreover, the process is confidential and thus will not have adverse effect to the reputation of the parties. So what are the different types of approaches that lawyers can choose from?
III DIFFERENT NEGOTIATION APPROACHES
Usually, disputants hand over their disputes to the lawyers who will represent them in the negotiation. Some lawyers view the dispute mistakenly as a battle to be won and the other party as the enemy. They think in terms of the law and they understand the law to mean what the court would award if a judge or jury were to decide the case. As what Professor Carrie Menkel-Meadow of the UCLA Law School said, they are bargaining "in the shadow of the court". One can hardly settle a dispute or even make things worse if the lawyer adopts such an adversary approach to negotiation.
The alternative to the adversary approach is the "problem-solving" or "principled" negotiation (the name called by Fisher and Ury in Getting To Yes). The essence of this approach is that parties concentrate on solving the problem by finding a mutually-beneficial solution rather than on winning the other side.
Fisher and Ury developed their particular form of principled negotiation in their classic and famous book, Getting To Yes : Negotiating Agreement Without Giving In. I am going to analyze Werksman's statement sentence by sentence by applying the four-step approach developed by Fisher and Ury. A lawyer must be able to follow this approach closely in order to fulfil the role of the lawyer in negotiation proposed by Werksman.
IV PRINCIPLED NEGOTIATION
According to Fisher and Ury, there are four elements that parties must follow in order to achieve an ideal settlement -
Firstly, we must separate people from the problem. That means we should view the problem as that which needs to be resolved rather than viewing the opposing party holding a contrary viewpoint as our enemy. If we fail to do that, parties would easily become antagonistic towards each other and the dispute would probably end up in the court without having the dispute settled. It is important to know beforehand the other party's background, feelings, emotion and we
should always be a good listener to what they are talking so that we can identify their needs and interests. In addition, we should be able to see things as the other party sees them. After satisfying all these preparatory steps, we can turn to the second stage of principled negotiation - Focus on interests rather than on positions.
When preparing for a negotiation, we should not just ask ourselves, "What do they want?" or "What do we want?" Instead, it is important to ask, "Why do they/we want it?" In other words, we should look behind the position taken by the parties and look for the true needs and interests of each party. An often-cited example would be the Israel and Egypt bargaining in 1978 over the Sinai peninsula. Let me first identify their respective positions. Egypt wanted to have the land back while Israel would not let Egypt to have an inch of the land. It is clear that if adversary approach is applied in this case, the Sinai peninsula would be divided up between the two countries. The result is undesirable for both parties. But if we look into the true interests of both countries, Egypt wanted sovereignty over the peninsula while Israel actually wanted security from invasion. Once these underlying interests were identified, some mutual interests can be uncovered and an agreement became possible. Finally, Israel agreed to return the sovereignty to Egypt while the latter agreed to demilitarize the region. A further example can be found in Appendix I.
After identifying the true interests of both parties, the next thing they should do is to generate options for mutual gain. That means the parties try to work together and develop as many solutions as possible which may meet the needs of both parties. We need firstly to try to brainstorm , that is to come up as many ideas as we can think of. Then we can invent options by going through the Circle Chart that involves four stages of thinking - Identify the problem, descriptive analysis, consider the possible approach to the problem and finally come up with some specific action. And then we try to consider shared interests and come up with an option that is mutually beneficial. One famous example to illustrate this point involves two children who are trying to decide which of them should get the only orange in the house. It is found that one of them wanted the orange for the juice while the other wanted to grate the rind to flavor a cake. So after we realize what their shared interest is, we can come up with a mutually beneficial option with no difficulty.
Finally, the parties should use some objective criteria or standards when they are trying to develop solutions that meet the interests and needs of both parties. For example, if two parties are negotiating on the price of a used car, they may use the blue book value as the objective standard rather than arguing over the price. The advantage is that both parties would feel they are fairly treated and it saves time also because it reduces the number of making commitments.
V ANALYSIS OF WERKMAN'S STATEMENT
According to Werksman, the role of a negotiating solicitor is of three folds - provide ideas for alternatively resolving the dispute which could not be enforced by any Court, to explore settlements which could never be achieved in Court and to think laterally to promote investigation by the parties of other forms of settlement that have not been contemplated by the parties. These roles are actually similar to the version of Fisher and Ury's principled negotiation. The lawyer who represents a party in a negotiation assists the client by suggesting possible solutions. For most of the time, the options and also the final agreements are mutually beneficial, that means both parties do not lose and are able to get something they want if an agreement is reached. This "win/win" result can never be achieved if the dispute comes before a Court because for the latter, one party wins and the other must lose ; there must be a winner in every trial. I think it will be helpful for me to raise an lawsuit example here. A day when a plaintiff walked across a street, he was struck down and seriously injured by the alleged negligence of the defendant driver. The plaintiff sued the defendant for negligence and claimed for damages. If this case is decided in the Court, there are only two possible outcomes : the plaintiff wins the case and is entitled to recover damages, or, the defendant wins and does not need to pay. However, if the parties choose to negotiate themselves without going to trial, we can find many different alternative solutions that are impossible in Court. One of the possible solutions for this case would be that the driver agrees to pay a smaller sum but periodically. In this case, the interests of the plaintiff would be to recover damages in a way that he can afford the operation and hospital fee while the defendant would like to pay less. As a result, the solution is mutually beneficial and which can never be achieved in a Court.
When we look at Werksman's statement again, we can see that he prefers the use of "principled" negotiation as all the roles of negotiating solicitor he proposed aim to solve the problem as opposed to defeat the other party. Though most people think "principled" approach developed by Fisher and Ury is clever and effective, it receives certain amount of criticisms. James White's review of Fisher and Ury's classic book is the most critical one. He criticizes that Getting To Yes only provides guidance in negotiations in which mutual gains are possible and ignores those in which negotiators are unable to engage in problem solving or finding adequate options for mutual gain. He refers Getting To Yes as naive as Fisher and Ury overlooked the ultimate hard bargaining. I personally agree that negotiation may not be perfect in the way that the negotiators must be able to explore mutually beneficial settlement. And sometimes, the two parties may initially begin by mutually-beneficial bargaining, but later on, one party may modify the agreed terms and come up with an "win/lose" agreement. However, no matter how forceful the criticisms are, "principled" negotiation is by far the best way for parties to resolve almost all disputes, even in the case of Northern Ireland. Please also refer to Appendix II.
VI CONCLUSION
"Principled" negotiation is a far more realistic approach than adversary negotiation for reaching efficient, fair, wise and mutually rewarding settlements. The negotiators need to consider not only the interests of their clients but also that of the other party. The process is likely to enhance the parties' business or ongoing relationships. Though negotiation may not be such a smooth process as Fisher and Ury suggests, it will become increasingly popular and remain as one of the best alternatives to litigation.
BIBLIOGRAPHY
Bellow, Gary & Moulton, Bea, The Lawyering Process. The USA : The Foundation Press, Inc., 1981
Brown, Henry J., ADR Principles and Practice. London : Sweet & Maxwell, 1993
Fisher, Ury and Patton, Getting To Yes : Negotiating Agreement Without Giving In, New York : Penguin Books, 1991
Goldberg, Stephen B. Dispute Resolution : negotiation, mediation, and other processes. Boston : Little, Brown, c1992
Henry, James F., The Manager's Guide To Resolving Legal Disputes. New York : Harper & Row Publishers, 1985
Smail, J. M., Negotiations and Settlements in Litigious Matters. Sydney : The College of Law, 1993
Smith, K. & Law, D., Negotiation Strategies. Sydney : The College of Law, 1989
Werksman, H. and Hearne, C., Dispute Resolution for Lawyers. Sydney : Department of Law, The University of Sydney, 1988
Wilkinson, John H., Donovan Leisure Newton & Irvine ADR Practice Book. Canada : John Wiley & Sons, 1990
The Negotiation Skills Company, http://www.negotiationskills.com/
Interest Based Concepts, http://www.cfier.org/InterestBasedAproach.html
Focusing On Interests Rather Than Positions, http://pertinent.com/pertinfo/business/stevecohen.html
APPENDIX I
John Haynes gave an excellent example to illustrate the distinction between what a person wants and the underlying needs -
He made the following statements in a talk :
"When a student who has to undertake certain practical educational training involving attending at institutions at irregular hours tell his father that he 'needs a motor car', one may discern that what he wants is a motor car, what he needs is a way to travel at awkward hours. His underlying need could be met by having a motor car ; it could alternatively be met by having a motor cycle or a bicycle, or by taking public transport when available and taxis when public transport was not available, or by arranging to get lifts with others on some paying basis, or perhaps by some other solution."
APPENDIX II
Michael O'Rourke (Michael_O'Rourke_Patterson@HUD.GOV) from the US
who posted a message on internet newsgroup also prefers using Fisher and Ury's
"principled" negotiation. Here is a quotation from his post :
"'Getting To Yes' details win-win, mutual interest negotiation. You can accomplish incredible things with it. I know, I use the metaphor in dealing with community groups, and always get outstanding results...... the win-win approach is actually fun, gets results far faster, and has no downside....."