Civility And Negotiations: Best Practices For Entrepreneurs, Their Legal Counsel, And Others

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.

David Abeshouse
About David Abeshouse 4 Articles
David Abeshouse is a New York Metro area Business Dispute Resolution Lawyer, Arbitrator, and Mediator, as well as ADR Law Consultant. In addition to representing parties in Alternative Dispute Resolution (ADR) proceedings, he serves as an impartial neutral Arbitrator on the Commercial Panel of Neutrals of the American Arbitration Association, the International Centre for Dispute Resolution, and other national and international forums, as well as a forum-based and private Mediator, and ADR consultant to other lawyers. David has been honored with membership in the National Academy of Distinguished Neutrals (NADN), the College of Commercial Arbitrators (CCA), and NY Metro Area SuperLawyers (ADR Law), and possesses the highest ratings from Martindale-Hubbell and AVVO. He regularly speaks at public engagements, and publishes articles online and in print nationwide and regionally.

32 Comments

  1. Hmm it looks like your site ate my first comment (it was extremely long) so I guess I’ll just sum it up what I had written and say, I’m thoroughly enjoying your blog. I too am an aspiring blog blogger but I’m still new to the whole thing. Do you have any suggestions for novice blog writers? I’d definitely appreciate it.|

  2. whoah this blog is excellent i really like reading your articles. Stay up the good work! You realize, many persons are looking round for this information, you can aid them greatly. |

  3. Hello, I think your blog might be having browser compatibility issues. When I look at your website in Chrome, it looks fine but when opening in Internet Explorer, it has some overlapping. I just wanted to give you a quick heads up! Other then that, excellent blog!|

  4. whoah this blog is excellent i like studying your articles. Stay up the great work! You recognize, many individuals are hunting around for this info, you could help them greatly. |

  5. Undeniably believe that which you said. Your favorite justification seemed to be at the internet the simplest factor to understand of. I say to you, I definitely get irked while other folks think about issues that they just do not realize about. You controlled to hit the nail upon the top as smartly as defined out the whole thing without having side-effects , other folks can take a signal. Will probably be back to get more. Thanks|

  6. Oh my goodness! Impressive article dude! Thank you so much, However I am going through troubles with your RSS. I don’t understand why I cannot join it. Is there anybody else getting the same RSS problems? Anyone that knows the answer can you kindly respond? Thanx!!|

  7. Do you have a spam problem on this blog; I also am a blogger, and I was wanting to know your situation; many of us have created some nice methods and we are looking to swap techniques with others, why not shoot me an email if interested.|

  8. I’m truly enjoying the design and layout of your website. It’s a very easy on the eyes which makes it much more pleasant for me to come here and visit more often. Did you hire out a developer to create your theme? Fantastic work!|

  9. Thanks a lot for sharing this with all people you actually understand what you are speaking approximately! Bookmarked. Kindly additionally visit my site =). We may have a hyperlink change contract between us|

  10. I’m not sure why but this weblog is loading extremely slow for me. Is anyone else having this issue or is it a issue on my end? I’ll check back later on and see if the problem still exists.|

  11. Hey! I could have sworn I’ve been to this blog before but after checking through some of the post I realized it’s new to me. Anyhow, I’m definitely delighted I found it and I’ll be book-marking and checking back often!|

  12. Can I simply just say what a relief to discover somebody who actually understands what they are discussing on the net. You certainly understand how to bring a problem to light and make it important. More people really need to check this out and understand this side of your story. It’s surprising you’re not more popular given that you most certainly possess the gift.|

  13. certainly like your web site however you have to check the spelling on several of your posts. Many of them are rife with spelling problems and I in finding it very troublesome to inform the truth on the other hand I’ll certainly come again again.|

  14. Hi there, i read your blog from time to time and i own a similar one and i was just wondering if you get a lot of spam remarks? If so how do you reduce it, any plugin or anything you can recommend? I get so much lately it’s driving me insane so any help is very much appreciated.|

  15. Thanks , I’ve recently been looking for info about this subject for a while and yours is the greatest I’ve found out till now. But, what concerning the bottom line? Are you positive in regards to the supply?|

  16. I like the helpful information you provide in your articles. I will bookmark your weblog and check again here regularly. I’m quite certain I will learn many new stuff right here! Good luck for the next!|

  17. Hello! I know this is sort of off-topic however I had to ask. Does building a well-established website such as yours take a lot of work? I am brand new to operating a blog however I do write in my journal on a daily basis. I’d like to start a blog so I can share my own experience and views online. Please let me know if you have any recommendations or tips for new aspiring blog owners. Appreciate it!|

  18. My developer is trying to persuade me to move to .net from PHP. I have always disliked the idea because of the expenses. But he’s tryiong none the less. I’ve been using Movable-type on a variety of websites for about a year and am worried about switching to another platform. I have heard great things about blogengine.net. Is there a way I can transfer all my wordpress content into it? Any kind of help would be greatly appreciated!|

  19. I’m amazed, I have to admit. Rarely do I encounter a blog that’s both equally educative and entertaining, and without a doubt, you’ve hit the nail on the head. The issue is something which too few people are speaking intelligently about. I’m very happy I found this during my search for something relating to this.|

Leave a Reply

Your email address will not be published.


*