Negotiation: We Can Work It Out

• Author: Andrew J. Pirie
• Profession: Faculty of Law. University of Victoria
• Pages: 92-146

92

CHAPTER 3

NEGOTIATION:

WE CAN WORK IT OUT

A. INTRODUCTION

Consider the following passage from P.G. Wodehouse’s

Aunts Aren’t

Gentlemen

(1974):

“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!”

“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

93

“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

94

ALTERNATIVE DISPUTE RESOLUTION

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.”

1

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.

2

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.