Negotiation: We Can Work It Out

AuthorAndrew J. Pirie
ProfessionFaculty of Law. University of Victoria
Consider the following passage from P.G. Wodehouse’s
Aunts Aren’t
“How much do I want, sir?”
“Yes. Give it a name. We won’t haggle.”
He pursed his lips.
“I’m afraid,” he said, having unpursed them, “I couldn’t do it as
cheap as I’d like, sir . . . I’d have to make it twenty pounds.”
I was relieved. I had been expecting something higher. He, too,
seemed to feel that he had erred on the side of moderation, for he
immediately added:
“Or, rather, thirty.”
“Thirty, sir.”
“Let’s haggle” I said.
But when I suggested twenty-five, a nicer looking sort of number
than thirty, he shook his grey head regretfully, and he haggled better
than me, so that eventually we settled on thirty-five. It wasn’t one of
my better haggling days.”
Negotiation is a common and familiar dispute resolution process. A
sample of the various definitions of negotiation illustrate the prevalence
of this process in all people’s lives, the obvious importance of good
“haggling,” and the relationship between negotiation and ADR:
Negotiation: We Can Work It Out
“To discuss a matter with a view to some settlement or compromise”
Oxford English Dictionary
“Whenever people exchange ideas with the intention of changing rela-
tionships, whenever they confer for agreement”
(Nierenberg, Fundamentals of Negotiating, 1968)
“Any form of verbal communication, direct or indirect, whereby par-
ties to a conflict of interest discuss, without resort to arbitration or
other judicial processes, the form of any joint action which they might
take to manage a dispute between them”
(Morley & Stephenson, The Social Psychology of Bargaining, 1977)
“One kind of problem-solving process — one in which people attempt
to reach a joint decision on matters of common concern in situations
where they are in disagreement and conflict”
(Gulliver, Disputes and Negotiations: A Cross-Cultural Perspective, 1981)
“A basic means of getting what you want from others. It is back-and-forth
communication designed to reach an agreement when you and the other
side have some interests that are shared and others that are opposed”
(Fishery & Ury, Getting to Yes, 1981)
“Concerned with situations in which two or more parties recognize that
differences of interest and values exist . . . and in which they want (or in
which one or more are compelled) to seek a compromise agreement”
(Raiffa, The Art and Science of Negotiation, 1982)
“Communication for the purpose of persuasion”
(Goldberg, Sander, & Rogers, Dispute Resolution, 1999)
Essentially, negotiation allows two or more parties to accomplish
by agreement what no single party could do, or would want to do,
alone. In the language of ADR, negotiation is a consensual dispute res-
olution process.
Practising lawyers spend a good deal of their professional time nego-
tiating. Legal negotiations take place in contexts such as the sale or lease
of property, the design of a partnership agreement or company struc-
ture, the break-up of a family, the settlement of a personal injury claim,
plea bargaining in a criminal case, or the development of government
regulations or policies. Some lawyers negotiate international agreements
and treaties. A few lawyers negotiate the creation of new constitutional
accords. Apart from negotiating on behalf of clients, lawyers also will
negotiate with their staff, associates, and partners in practice over a wide
range of office management matters. Negotiation is not some marginal
or peripheral aspect of what lawyers do. It is the central core, the pri-
mary means of resolving legal disputes. Statistics show that over 95 per-
cent of all civil cases commenced are resolved without trial, primarily by
negotiation. Any lawyer would be hard-pressed to dispute the wisdom
in the comments of former Chief Justice Warren Burger of the United
States Supreme Court when he said that “of all the skills needed for the
practising lawyer, skill in negotiation must rank very high.”
But these sentiments surely apply to everyone if we all negotiate
whenever we want something from somebody. For business people,
politicians, public officials, the wide range of professional persons, ser-
vice providers, representatives of non-governmental organizations,
community workers, and people in their day-to-day activities, negotia-
tion also is central to what they do.
Moving from an intellectual understanding that negotiation is vital
to almost every endeavour to being an effective negotiator in practice is
not always an easy task. Negotiation is a big and complicated subject.
Like ADR, many disciplines, including law, have studied the negotia-
tion process and have made significant contributions to our under-
standing of what it is and how it is practised. However, prior to the
modern emergence of ADR, education or training in negotiation was
irregular and spotty. Even though negotiation was a core experience
for many professionals and other individuals, there was no regular and
thorough examination of its workings. As a result, just because most
people are everyday negotiators does not mean that everyone is good at
it. Practice, without more, may not make perfect. For example, in the
legal profession, the extensive use of negotiation as a dispute resolu-
tion process to resolve 95 percent of the cases can obscure the facts
that these settlements may not always be reached in a timely way or
that clients and lawyers are not satisfied with the results. In addition,
cases not settled by negotiation that go to trial may be a result of defi-
ciencies in negotiation skills and not the unsuitability of the case for
consensual resolution.
Accordingly, even though there is considerable experience in nego-
tiating, negotiations do not always proceed smoothly. Problems can arise.
Negotiations can break down. For example, consider how a negotiation
would be affected if the negotiator
1W. Burger, former chief justice of the United States Supreme Court, in “Isn’t There
a Better Way?” (1982) 68 A.B.A. J. 274 at 275.
2These results are suggested in a survey of trial lawyers in British Columbia. See A.J.
Pirie, “A.D.R. in Practice: Making an Informed Choice” in Annual Meeting Papers of
the Canadian Bar Association (Vancouver, British Columbia, 1989) at F. 3.01.

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