Civility is – and should be – a core negotiation issue. The degree to which one employs ordinary civility in negotiations often has a marked effect on the bottom line result. It also makes life more pleasant, even in the fundamentally adversarial situations in which business litigators and transactional lawyers often find themselves. Consider the opposing party or counsel who — instead of working with you to resolve a dispute or problem in customized, mutually acceptable fashion — prematurely blurts out, “I’ll see you in court.” This knee-jerk reaction usually fails as a negotiation tactic.
· First, that sort of reaction reflects a lack of analytic forethought and a predominance of emotional outburst, two aspects that make the adversary less than formidable.
· Second, it essentially obliterates the possibility of counsel working together for the mutual benefit of the clients, who likely could achieve a customized settlement far better for both sides than any court could direct. Because the vast majority of business litigations settle before trial, it is a fair bet that the parties will end up in some sort of settlement negotiations anyway, so why not sooner and on more amicable terms, and before available funds get spent on needless disputation?
· Third, over time, the obstreperous adversary will develop a negative reputation as a loose cannon — a temperamental, petulant, unprofessional person to whom others would not refer business. Opposing counsel often serve as good referral sources for future clients because they have seen first-hand what the lawyer can do in the real-life trenches. Unreliable lawyers receive few referrals. To the extent her own client learns of his uncontrolled reaction, the client may become dissatisfied with a lawyer she sees as out of control, putting his own emotional needs ahead of her best interests in the case.
Lawyers and their clients alike should keep in mind several elements of professionalism in all negotiations and business dealings:
· Legal rights represent the floor or baseline: The lawyer or party generally has no legal obligation to engage in settlement negotiations. But absence of an obligation does not mean one must not act, just as possession of a legal right does not mean one must exercise it. Be ready to go beyond what the basic legal rights “require” if it will be of benefit to do so. Rigid adherence to one side’s perception of what is legally mandated behooves no one if the goal is to achieve a negotiated, mutually beneficial result. And often the lawyer may have an ethical duty to the client to explore settlement options (notwithstanding that this might ultimately reduce the magnitude of the legal fees in the matter).
· Reduce emotionalism. Don’t lose your temper; rather, lose the temper, yelling, and foul language. Although “venting” sometimes may temporarily improve the mood of the “venter,” it rarely works to his or her advantage in negotiations. Yes, occasionally it may tend to intimidate; however, the same result likely could be achieved in those instances without the expletive-laden, high-decibel diatribe. Most often, it will diminish credibility and respect. That is certainly not a price worth paying for the occasional slight negotiation advantage it arguably might afford. Indeed, a prompt apology for an emotional outburst might gain more ground toward a good working relationship and achieving the negotiated goal.
· Honesty as a policy: While counsel clearly must and should maintain client confidentiality, and should not unnecessarily reveal matters detrimental to the client’s interests, outright falsehoods have no place in negotiations, both on ethical grounds and because playing fast and loose with the truth will trip you up in the long run, or sooner.
· Employ common courtesy and civility as a matter of routine: Make it a part of your natural way of dealing with others, and you will see how effective it is, both in terms of ultimate results and in your quality of life. Sure there are times when the need for some more forceful language and volume may be indicated, but this should be the exception rather than the rule. That makes it more impactful, when it is used (sparingly). And by refusing to respond in kind when someone personally offends you by words or actions, you refrain from lowering yourself to their level, and that in itself is a laudable goal, both substantively and so that the other person is not allowed to feel that (s)he “got to you.” Even responding to e-mails and telephone voicemail messages encompasses these tenets of common courtesy and civility – your prompt response encourages similar treatment by your counterpart. The more the enlightened use these means of conducting legal and business negotiations, the more likely their use will spread. How much better things would be for all if this were to become the usual mode for the majority.
These simple principles gel and indeed crystallize for those of us who serve as professional neutral arbitrators (and presumably, for judges). Serving as the impartial neutral provides a unique perspective. In the course of conducting preliminary and evidentiary hearings in commercial cases within the jurisdiction of the arbitral forum (as an alternative to court), the arbitrator renders decisions and awards that have binding and enforceable legal effect. Clearly, the less civil party in a dispute often merely is endeavoring to overcompensate for unfavorable facts or law, whereas the more civil party in a dispute often feels no need to descend into incivility. Indeed, obstreperous counsel thus inadvertently acknowledges implicitly that (s)he likely has a less than wholly legitimate case on the facts and/or law — not something a lawyer seeks to communicate to the one who is judging the case and will issue the final determination. Rather than reflect weakness, confident civility can help you prevail.