What They Didn’t Teach You In Law School: Skillful Negotiation

businessmen shouting through megaphones business conflict concept

When I was in law school, I took a negotiations class that was offered through the MBA program. It was an eye opening experience to take a class with students from the MBA program as well as my fellow law students. We were graded not only on delivering the desired outcome of our hypothetical clients but also based on whether we were perceived to be ethical in our negotiations by the other side. Universersally, the law students performed poorly in the ethical category. The professor who has taught the class for many years commented that this was common.

Sadly, studies also show that lawyers do  indeed frequently engage in unethical behavior. In one study, almost one third of lawyers engaged in unethical behavior and even fraudulent behavior in negotiation.

The study outlines three possible contributing factors for why lawyers engage in such behaviors:

  1. too many lawyers have only a superficial understanding of rules that are more complicated than they appear;
  2. lawyers frequently take their “zealous advocate” role too far, thereby placing client loyalty above other important values such as respect for truth and justice;
  3. the practice of law and the people who are drawn to it are highly competitive.

It’s unfortunate that we as lawyers don’t graduate from law school with some of the foundational tools necessary for skillful negotiation and how to engage in conflict.

Mindfulness can play a key role in helping to guide us skillfully in difficult situations.

Mindfulness Helps to Defuse the Fight or Flight Response

Many research studies indicate that meditation can calm the brain and actually shrink the amygdala—part of the brain that’s responsible for the fight or flight response. When we’re in a panicked state, which can certainly be triggered by being in a heated discussion or engaged in conflict, our ability to think creativity and see the big picture diminishes.

Commitment to the Process vs. the Outcome

Mindfulness teaches us to commit to the process of the negotiation. We can let go of preexisting ideas about how the negotiation should go. Definitionally, mindfulness is about committing to each moment—approaching it with curiosity. It gives us an opportunity to deeply understand the other party, even if we don’t agree with her.

Practice Equanimity

A foundational teachings in mindfulness is the concept of equanimity—ability to stay centered in difficult situations. If we are able to reduce the instinctive reactions to what the other party does or says, for example, react in anger, frustration, hostility, we can gain a huge advantage. The better we are able to own our emotional reactions and recognize it as a passing event rather than something we must react to, the better we are able to keep ourselves grounded to the process of negotiation.

Clarity on Our Own Internal Ethics and Morals

Regular meditation and mindfulness practice creates a space for stillness where we can let all the dust of the swirling thoughts settle and see things as they are rather than see it through the lens of our own biases. It also creates the space to contemplate and reflect on our moral standards. We can ask and reflect on questions such as—what are my core values? What do I stand for? What do I believe in?

Gaining clarity around our own morals—what is right or prudent as well as ethics—how those moral beliefs govern how you’ll behave in a given situation. As lawyers, we may come across a situation where even though it doesn’t cross any boundaries of our obligations as attorneys or the letter of our professional responsibility, it conflicts with our own ethics.

The important lesson here is not whether we should withdraw from the client’s case in such situations but rather to understand such internal conflicts more intimately. After all, our core beliefs as lawyers, such as—zealous representation, justice, determining right from wrong—doesn’t exist in the abstract and in fact, we can only test when those concepts meet a particular issue in a case.

Fully Understanding What Is In The ‘Best Interest’ Of Our Clients

Often, the conflict or negotiation our clients hire us for occur not with strangers but in intimate or familiar relationships. Clients come to us because she’s feeling hurt, betrayed, or angry. They believe the legal system will provide a relief. However, as attorneys, we know all too well that even if our client “wins,” it’s often a hollow victory.

One litigation attorney said it best:

“Going to trial and/or having your day in court is not as wonderful as the client imagines. First, it is shockingly expensive to prepare for trial, and preparation is required. Clients do not understand the long hours and work in preparation for pleadings, briefs, mediation, hearings, trials. Secondly, that day in court is rarely as invigorating and cleansing as they expect. Usually it is painful, exhausting, hurtful, and ugly. And afterwards, you feel dirty, regardless of the outcome.” ~Tc Langford

As attorneys, we should take the time to help our clients get to a place of calm (or at least calmer), then explain the long view of what it means to engage in litigation.

I’ll close with some sage advice from Abraham Lincoln:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.” ~Abraham Lincoln