There are three main styles of negotiating, the “competitive style”, the “co-operative style” and the “problem-solving style”. Often a particular style will be adopted without advance planning or even a conscious decision. However, there is more to a negotiation than meeting the other side and bargaining away.
A negotiation has to be planned and executed as carefully as litigation. In your planning the first step is to decide on a style or approach for the negotiation. Often the approach adopted will reflect the particular lawyer’s individual personality and style or even sphere of practice. Advocates, according to the nature of their profession, are adversarial in their approach to solving problems and are likely to adopt a more competitive style than attorneys. Attorneys, on the other hand, may well adopt an approach that is designed to find a solution to a common problem. Each style has its advantages and disadvantages, though.
A negotiator using the competitive style seeks to gain as much as possible while giving up as little as possible and approaches the negotiation as if it were a contest. The main advantages of the competitive style are that it may produce a result close to the starting position; it is more likely to be effective against a weak opponent and to win concessions; and it has fixed objectives and makes it clear that you are out to win. This may produce good outcomes and impress clients.
But there are some equally clear disadvantages. A competitive approach increases the chances of a deadlock; it may damage the relationship between the parties irreparably; it may be less likely to produce an agreement both sides can live with; and it may generate mistrust, aggression and frustration on the part of the opposing lawyer and client.
A co-operative style, like the competitive style, puts the interests of the client first but seeks a solution that would maintain a good relationship with the other side. In order to achieve this a negotiator using this approach will tend to look for common ground and shared interests. A co-operative style is more likely to achieve a settlement, is less likely to damage the relationship between the parties, is more likely to produce a fair result and may encourage the other side to make concessions. However, the use of the co-operative style in a negotiation could all too easily lead to the situation where the client’s case is not pursued vigorously enough and an insufficient settlement is accepted. This may happen when concessions are made too easily, when the strengths of the client’s case are not given their true weight or are not pursued vigorously enough, when a settlement is accepted simply for the sake of settling, or when the co-operative negotiator bows to pressure from a more aggressive negotiator.
The competitive and co-operative styles are both positional, meaning that the negotiator starts from the standpoint of his or her client and seeks to achieve a solution that primarily takes into account the interests of the client. The positional approach is the conventional method of negotiating; it is only recently that lawyers have started looking at another method to resolve disputes by negotiation. That method has been found in the problem-solving style of negotiation. This approach concentrates on the problem faced by both clients as a joint problem for which the best possible solution must be found. This requires both sides to work together in exploring various means to find a solution that will enhance the gains for both clients. In going about the matter in this way, the lawyers will consider all the possible effects of various alternatives on both the parties. These effects may stray well outside the traditional sphere of lawyers and include such diverse aspects as the legal, financial, social, personal, and even psychological effects of a particular solution on each of the parties.
While there are undoubted advantages in the problem-solving approach for certain kinds of disputes or situations, it has some disadvantages in a dispute of a legal nature. The main problem for a lawyer engaged in litigation, is that he or she has to advance the client’s case as strongly as the circumstances permit which often means doing as much harm as possible to the other party’s case. Clients also expect an adversarial attitude to be adopted, especially in the early stages of a particular dispute. The problem-solving approach works well in cases where there are third parties involved, or continuing relationships, or where there are new deals to be made even while old disputes remain to be resolved. Examples would include family disputes where custody and maintenance of children are involved, disputes between builder and owner or charterer and ship-owner and negotiations for the conclusion of new contracts. In cases like these, the parties may start out with adversarial attitudes but they are required by their mutual interest and ongoing relationship to co-operate with each other. Therefore, an approach that concentrates on finding the best solution for the joint or common problem, rather than one which seeks to give one of the clients his or her wishes, is more likely to be the right answer in the long term.
The positional approach has certain advantages for litigators. The first is that they are familiar with this approach to solving legal problems. The second, which should not be underestimated, is that clients often expect this sort of approach to be adopted. They see the other side as the enemy and they want an approach that aggressively pursues their [Page 56] own interests and the outcomes they want, even at the expense of their opponent. The third advantage is that the lawyer on the other side will probably follow the same approach, allowing both sides to prepare knowing more or less what is likely to happen during the negotiations. The main advantage of the positional approach is that it allows the negotiation to be planned carefully in advance, with a planned opening position, a clear understanding of the concessions which may be made, and a defined bottom line.
Which of these approaches one adopts, will depend on the circumstances. The positional approach may be preferred to the problem-solving approach when the dispute is one that ordinarily would be resolved by litigation.