Conflicts and disputes are of all times. But client needs with regards to conflict and dispute resolution are changing. If lawyers fail to keep up with these changing needs, they’ll end up damaging their reputation by failing to meet changing client needs. Clients will go elsewhere, looking for other advisors who can provide better client service and quicker dispute resolution with more control over the dispute resolution process and its outcome. Legal practice is a conservative profession and so change tends to come very slowly. With Negotiation and Dispute Resolution for Lawyers, Professor Barney Jordaan has authored a much-needed book that will help lawyers offer better client service and in doing so improve their reputation as professionals who enable their clients to focus on their core business.
Barney is adamant: “Litigation has its place, but it should always be the last resort for resolving disputes. The tools lawyers have at their disposal to help resolve their client’s problems go beyond litigation, but unfortunately, litigation often remains the first choice for many. However, our research shows that what clients want is not to win cases but to have solutions as quickly as possible, with the least risk and at the lowest cost. Litigation doesn’t give them that, quite the opposite. And while the legal profession has alternatives to litigation, such as negotiation, directly between parties, or via an intermediary in the case of mediation, they are not being used as often as they could.”
First of all, the book wants to help lawyers think differently about conflict, disputes and negotiation: by adapting one’s thinking to the context new possibilities tend to open up.
“If you see conflict as something bad, you’ll try to avoid it, attempt to shut it down as quickly as possible or go the litigation route. But if you see conflict as a normal feature of personal and business relationships, you’ll be able to identify and exploit potential benefits, for example the opportunity to create clarity, generate new ideas or even strengthening relationships. As a result, your approach will be one of problem solving rather than confrontation”, Barney explains.
A similar ’adaptive’ mindset is essential when it comes to negotiation. Unfortunately, negotiation training is still all but mainstream in most law schools. “If it’s taught at all, it’s usually an elective, which has always bothered me. Most lawyers have never had formal negotiation training and they are thus inclined to still see negotiation as an extension of litigation with the aim of ‘winning’ the negotiation. It’s this litigation mindset that leads to poor negotiation outcomes and damaged relationships which clients have to pay for”, he says. “Ideally, negotiation should be seen as an opportunity to resolve disputes for mutual gain. I stress mutual gain not equal gain, as one of the parties may gain more than the other because they have the law on their side, for example, or because they have more leverage. In any case, if parties view negotiation as an opportunity for mutual gain, then, again, it will change the way they approach and deal with it. They will then become more problem solving-oriented for the benefit of their clients and, ultimately for their own reputation’s sake.”
If disputes drag on and attempts at resolution are delayed, finding a mutual gains solution can become very difficult. The book therefore emphasises early dispute resolution, explaining how lawyers can be architects of more effective and coherent dispute resolution processes and systems to help their clients deal with internal conflicts such as employment disputes, as well as external disputes with customers, suppliers, competitors, regulators etc. It also covers the skills needed for negotiating and for resolving conflicts more effectively.
Barney also focuses on how biases and psychological traps impact the decision making of not only clients but also of lawyers. “We need to be conscious of the impact of biases on our decision making. Lawyers are as prone as their clients to suffer from this, sometimes even more so. For example, if you as a lawyer just continue doing whatever you’ve always done because it has always worked for you, you risk losing sight of new information, changed circumstances or the particular context of a dispute and thus risk making poor decisions for your client.”
The book also addresses the role of emotions in decision making. “Lawyers like to think they can keep their own emotions out of the equation, but that’s simply not possible, given the way our brains work. The emotions of the parties in a dispute will also affect their representatives and even if the latter can shield themselves from it, they will have to help their clients manage theirs because emotions tend to escalate a conflict, making matters much worse.”
What are the key messages readers should take away from this book?
You will be hard-pressed to find another book that is as comprehensive as this one, bringing together theory and practice while covering the broad spectrum of negotiation, conflict handling and dispute resolution processes. What really makes it stand out though, is the approach Barney has taken: “Negotiation science has been developed over many decades, but so far there hasn’t even been a single universally accepted definition of what negotiation is. The reason is simple: the subject has been approached from different angles, such as law, diplomacy, anthropology, psychology, sociology, game theory in economics and so on. Most of what we know is also largely based on a Western (particularly American) approach to the subject. What I’ve tried to do is to suggest a definition of negotiation and a corresponding framework that I believe captures the best science available. By looking at negotiation as a decision-making process, different parts of the puzzle fit. Negotiation is not just about communication, making offers and counteroffers, it’s about making decisions. This has important implications for one’s approach to negotiation.”
The book is targeted at lawyers, not only lawyers in private practice operating for their own account, but also at in-house legal counsel. “All too often in-house counsel simply follow the advice of external lawyers without asking themselves what the best process would be for their company in a particular dispute”, Barney says. “This book helps them to reflect on how they could identify the best process for this and how they could persuade or influence their external counsel to adopt a process that favours problem solving over litigation.”
Combining theory, practical advice, guidelines, checklists and other annexes, Negotiation and Dispute Resolution for Lawyers is the ideal self-study book for lawyers worldwide. “It’s impossible to cover all jurisdictions and their peculiarities, so it was written to be applicable in legal practice in general. The skills discussed are skills lawyers need anyway.”