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Lawyer Negotiation: Theory, Practice & Law - Book Review

by Michael Leathes
November 2017 Michael Leathes
As paradoxes go, Lawyer Negotiation by professors Jay Folberg and Dwight Golann takes some beating.

Although aimed at law students as course material to prepare them for negotiating in the real world of practice, experienced partners of major law firms are also likely to find much they do not know, never experienced, fail to realise or have forgotten;

although pitched to attorneys, the technical legal backdrop is confined to one 30-page chapter, and any non-lawyer professionals who represent clients and others in negotiations will find this book highly readable and directly applicable to their work;

although geared towards negotiating outcomes to disputes, it also does a fine job on techniques for concluding deals where there is no dispute, and strategies for avoiding disputes arising from dealmaking;

although designed for negotiators who represent someone else, usually a client, this book is packed with information about the optimal attitudes, behaviours, practices and techniques that lead to better outcomes for those negotiating on their own behalf;

although authored by two of the leading negotiation educators in the world today, they have included 47 bursts of wisdom, and some challenges, from almost as many top negotiation contributors, each in the length and style of blog pieces; and

although comprehensive, at over 350 pages in length, the neatly segmented arrangement and easy style allows for great depth and breadth in a refreshingly readable, attention-grabbing way.

The authors have managed to make this book relevant and useful to such diverse market segments by using a number of distinctive approaches. Their starting point is subtly revealed in the first page of the first chapter, where the authors rightly point out that [n]egotiation is at the core of what lawyers do in representing clients, a remark that emphasizes another paradox for a course book - that, despite the truth of this statement, negotiation is often not taught to lawyers as an essential hard competence. Students who have the privilege of being taught negotiation to the level reached in this book should count themselves very fortunate indeed.

Given that negotiation is a kaleidoscopic subject, with different forms, theories, techniques and tools, it can be a tough discipline to teach, even in coursework format. Yet there is a clear structure and flow in this book around seven typical (but not invariable) stages of a negotiation: prep and goals; initial interaction/offers; exchanging information; bargaining; moving toward closure, reaching impasse or agreement and finalization. Around that model, the authors have devoted chapters to perception, fairness and emotions; gender, culture and race; phone and cyber negotiation, reaching and overcoming deadlocks; using mediation to achieve agreement; and negotiation ethics.

Early in the book, the authors devote space to the critical issue, much debated among both theorists and practitioners, about which is better – competitive (i.e. adversarial, distributive or positional) bargaining or collaborative (i.e. integrative, principled, problem-solving or interest-based) negotiation. In a section everyone should read and remember, guest contributor Professor James J. White critiques Getting To Yes, which famously promoted the latter, followed by a response from Professor Roger Fisher, a Getting To Yes co-author. The dilemma frequently facing negotiators when having to chose one approach or another is addressed in practical terms. Of course, many negotiations are a blend of both.

Two of the book’s fourteen chapters are focused on overcoming obstacles and reaching agreement through the use of mediation, largely in a dispute context. As mediation is assisted negotiation, and has proved very successful, it has a vital place in any negotiation book. It is right to emphasise how mediation works, how to get the most out of a mediation and how to negotiate when a mediator has been engaged, because too many negotiators fail to adapt their approach and style when representing clients in a mediation.

Deal (or transactional) mediation, the use of a facilitator to help parties conclude an agreement where there is no dispute between them, is, a bit disappointingly, addressed in a dozen lines. However, at least, unlike most negotiation books, the point has been made, and the authors have included an extract from a seminal 2004 article on deal mediation by Professor Scott Peppet that will inspire readers to try deal mediation.

The book is also a testimony to both authors’ long experiences as both educators and practitioners. Throughout, they cleverly avoid being preachy by frequently presenting diverse examples and challenges that provoke you to get mentally involved, think hard and devise your own answers. Their treatment of some of the more difficult and controversial issues, in particular culture, gender, race, ethics and emotions, encourages you to draw on your personal sense of propriety to reach responsible conclusions and strive for sustainable outcomes.

The book comes with an access code to Wolters Kluwer’s learning environment (CasebookConnect.com) and the publisher offers a linked study aid with the book.

Lawyer Negotiation clearly sets out to blend theory and practice, but the prevailing emphasis is on practical implementation. This is a goldmine of beautifully presented wisdom and inspiration. However highly we might rate our personal expertise as negotiators, this book can improve on our knowledge and skills. The authors have pulled it off by offering us an eclectic amalgam of ideas, sources and experiences drawn from their own extensive international knowledge and background, liberally complemented by scores of negotiation thought leaders, educators and authors. Now that I have discovered this book, I wonder how I muddled through without it.

Undoubtedly, this is one of the best and most useful books yet written on the skill of negotiating.

[1] This review is by Michael Leathes, a career-long corporate counsel, and author of Negotiation: Things Corporate Counsel Need To Know But Were Not Taught (2017)

The book, Lawyer Negotiation: Theory, Practice & Law, is written by Jay Folberg & Dwight Golann, part of the Aspen Casebook Series, Wolters Kluwer, Third Edition 2016, published in paperback, Kindle, GooglePlay and VitalSource Bookshelf formats. 

Biography


Michael Leathes is a co-founder and formerly a director of the International Mediation Institute (IMI). He spent much of his career as an in-house counsel for a number of international corporations in a variety of roles, including General Counsel of Pfizer International (1984-87), General Counsel of International Distillers & Vintners Limited (1992-97) and Head of Intellectual Property of BAT (1997-2006). He has spent much of that in-house career managing disputes around the world. Michael is the author of a book on negotiation, to be published by Wolters Kluwer in January 2017.



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