When I attended at the Law Society of Alberta and The Harvard Law School’s courses in mediation and negotiation I felt that I had found the way I wanted to practice Law. Civil negotiations, based on reasoned arguments that look to maximize what was available to meet all party’s needs, in an effort to find the best possible Win – Win solution and the solution is chosen by the parties themselves. Interest Based Negotiation also epitomized what I thought (and still believe) a Lawyer should behave both as a civil professional and an agent of clients’ interests.
Then theory hit real life and I came face to face with lawyers and clients for whom a quick and effective solution was not what they wanted at all. I have even had students in my negotiations class at the University of Alberta Law School pronounce that they had taken the ideas we discussed in class to their Lawyer Principals and had been told it does not work in the ‘real world’. I told them to tell that same criticism to the participants in the negotiations that dismantled Apartheid and the families of the students held hostage in Iran during the Regan era. I also pointed out that The Law Society of Alberta teaches Interest Based negotiation to the law students as part of the Bar Admissions course. Maybe it has not filtered down to their Lawyer Mentors yet.
Bottom line is that litigation is lucrative and addictive. It has defined steps, which explains the runaway legal fees as the time taken to complete the steps and the complexity of what has to be covered before the case is considered ready for Court increases. And, just to be clear, it rewards the Ego’s need to dominate and control others while having someone else (the Judge or the other lawyer) to blame if things go wrong. Interest Based Negotiations undermine the Litigator’s Ego’s Needs of the modern day litigator.
Let me give you an example. I was in Court and spoke to a young lawyer who said that he was looking forward to working with me and, in the very next breath, then said he would not want to face himself as the opposing lawyer. Confidence I can applaud. Arrogance is a child of Ego.
Interest Based Negotiation puts the participant front and centre with no one, but themselves, to point at or blame. Unlike litigation, Interest Based Negotiation allows you to choose whether you will accept the solution. Interest based negotiations allow you the opportunity to build, or rebuild, relationships if you choose. Litigation will inevitably poison that opportunity of choice.
I have worked with my newly found skills (which are now 25 years old and still evolving) and found that clients like the idea of Interest Based Negotiations as long as it was guaranteed to be cheaper (in monetary terms) and quick. Lawyers liked the idea of Interest Based Negotiation as long as their clients would pay them to sit at the negotiation table (after which the interest in Interest Based Negotiation wained exponentially). This assumes they had been trained and taken the time to understand the Interest Based Negotiation training and skills they had been shown. Their Ego makes it hard to ‘trust the processes’. The Ego cannot ‘trust the process’ because ‘control’ is shared, no one is threatened with violence (litigation is an emotionally and psychologically violent process) and Might is not always Right.
Interest Based Negotiation is about building (or rebuilding) a relationship on a foundation of Trust that allows for the people in the relationship to share in a common goal creation and recognition processes. In simple terms this means that ‘I don’t care how much you know, until I know how much you care’. It takes time and effort to do this and means that you must take responsibility for your actions, words, behaviors and thoughts and not allowing someone else to take that responsibility over from you.
Life I full of choices. And this is one of them.