What’s the longest you’ve ever waited at court for a party to make an offer at an FDR? Two hours? Three?
How many times have you sat in a conference room, running out of small talk, snatching glances at a clock that never tells the right time? Your side waits patiently for the other side to respond to the indication, only to find out that in an identical room in another part of the court building (remember those?) they were waiting for you to make the first move? Or that they’d actually gone home half an hour ago.
It sometimes feels strange that in a field of law which so underlines the importance of negotiated settlement, which invented the FDR (and subsequently the VIP area that is the private FDR), that when it comes to negotiation, we’re basically all – solicitors and barristers – amateurs.
Which isn’t to say that we can’t negotiate. You can’t be a successful financial remedy practitioner without being able to negotiate competently. Some people have a preternatural instinct for pitching an offer in exactly the right spot (the Goldilocks instinct, or what Sir Geoffrey Boycott would call the corridor of uncertainty). But if you asked what is their negotiating strategy, or what negotiating tactics have they used, you’d draw a very blank expression.
Our awareness of negotiating theory is limited to saying things like “I’m not negotiating against myself”, or “I’m not going to let this be a Dutch auction” (I’ve said this several times, hoping my opponent doesn’t ask me to explain what exactly is a Dutch auction). Even complex litigation concludes in the spirit of the souk: “Final offer! This is my final offer! No way can I sell you this carpet for less. I would be stealing bread from my own children’s plate… Ok, ok, we split the difference, yes?”
We negotiate in the same way most people play chess: we know how the pieces move. We know the aim is to capture the other side’s king. We plan maybe one or two moves ahead. But few arrive at court thinking “today I’m going to make the Albin Countergamble”.
Masterclass on Negotiation
It’s difficult at the moment to go online without being bombarded by adverts for MasterClass. This is a subscription site which involves famous film directors, chefs, DJs and interior designers giving bite-sized classes in essential life skills like making a Hollywood film, running a Michelin star restaurant, and getting your dance album to number one. My wife has a subscription. (I’m far, far too cheap to buy one myself). The one class I’ve watched is by Chris Voss, a gravelly voiced former CIA hostage negotiator, who has a twelve part series on negotiation theory.
It’s broken down into short segments with titles that sound like airport novels: “Bargaining”, “Bending Reality”, The Accusation Audit”. I wouldn’t exactly describe the approach as scientific. There are plenty of examples of common sense practices being labelled and packaged and sold to the person gullible enough to be watching (me) or paying (my wife).
But it does remind you that Out There (in the world of commerce) people take this stuff seriously. And sometimes you’ll have a client who comes from that background who will be surprised that you aren’t discussing in conference how you intend to deploy Tactical Empathy (TM) or Mirroring (TM) in the negotiation.
To be honest I don’t yet know if I have benefitted from watching these classes. And to be even more honest I’ve only watched 3 of the 12. (Like most of these things, it’s not that interesting beyond the first fifteen minutes).
My main reaction is a sense of relief that a lot of what’s being discussed is what already takes place (eg finding common goals, not being overly aggressive, not boxing yourself in). If you google studies on negotiation you get pearls of wisdom like “Don’t gloat” (Stanford Business School), which you’d sort of think should be taken as read. So while it can’t hurt to think in terms of negotiation strategy, I’m certainly not saying that we all need to subscribe, or get into using these new terms. After all, a FDR isn’t the same as a classic commercial negotiation: there are effectively three parties and the most important job is persuading the judge, who has no skin in the game. Which skews the application of game theory.
But on reflection I do think there’s something a little quaint about high octane litigation, multi-million pound claims, being resolved in such an unstructured way. Which until recently involved offers being written down in blue books with fountain pens, often in such bad handwriting that it’s sometimes impossible for even the writer to read. Or where particularly grand counsel (you know why you are) rely on pupils as scribes to take a note of the terms.
Admittedly we have all had some perfunctory training in negotiation. But for those who remember Bar School or Law School as being a bit Mickey Mouse when it came to vocational training, negotiation classes were about pure Disney as it got. Perhaps things have improved. Somehow I doubt it.
I think my point is this. As lawyers we operate in a world where the practices of the commercial world rarely intrude. And family law with it’s closed courts and impenetrable discretion is a little like Edo Japan before Commodore Perry arrived in the 1850s: maybe it’s time to think more objectively about what we’re doing when we negotiate – and while there is an understandable reluctance to take seriously pseudo-scientific mumbo jumbo about negotiation, maybe we should at least be open to thinking about it?
23 July 2020