Negotiation is often the first critical step in the process of trying to settle a dispute in an effort to avoid the prospect of litigation. Negotiation is not something reserved for lawyers or for dispute resolvers working on behalf of a client. Anyone can be a negotiator on their own behalf. Good negotiators stand a better chance of resolving their own disputes without any need to engage a trained and skilled negotiator to assist them. So the art of skillful negotiation is probably a very valuable skill for anyone to acquire. It can pay big dividends by giving a person a much better chance than most to resolve their dispute without threat of huge expense and expenditure of time and energy.

Are lawyers necessarily good at negotiation? Absolutely not. Probably only a very small percentage of all lawyers are skillful negotiators. Why? Because negotiation is not a core skill taught at our law schools, because it is not considered a legal skill. If you want to learn about negotiation you need to enroll in a dispute resolution course as an extra curricula subject or attend various negotiation skills workshops.

So what does this mean for members of the public who regularly bring their disputes to lawyers to help them resolve them in the quickest and most efficient way possible? It means that most lawyers, as currently educated and trained, will more often than not fail to increase the prospects of early settlement of the dispute as a direct result of their negotiation skills. If they do manage to achieve early resolution of the dispute it will often be more due to luck or fluke than to their skill as a negotiator. Furthermore, the settlement ‘negotiated’ by the lawyer may a far poorer settlement than might have been obtained for that client by a well trained negotiator.

I make mention of these matters because negotiation and settlement of disputes is now regarded by the courts and by the laws that govern all lawyers as a core skill in the practice of law concerning disputes and litigation. These days the courts and tribunals actively encourage settlement of most types of dispute.

Rule 74 of the NSW Barristers’ Rules states that among the work to be performed by a barrister is “negotiating for the client with the opponent to compromise the case and representing the client in a mediation.” Rule 16 of the same Rules contains a general obligation to advance and protect the client’s interest to the best of the barrister’s skill and diligence.

Rule 17A states that a barrister must inform the client or the instructing solicitor about the alternatives to the fully contested adjudication of the case which are reasonably available to the client.

So, I ask rhetorically, how is this barrister to do all this if he or she has never been fully trained and educated in the art and skills of effective negotiation? The same thing applies to attorney solicitors.

These days most barristers and solicitors are well aware of their duty and obligation in this regard owed to a client. They are also well aware of the fact that they can, if they wish, enroll in any number of quality courses or workshops that train lawyers to be good negotiators.

But the question I raise in this blog post is what should a barrister or solicitor tell their client who comes to them expecting to be ably represented at ALL STAGES of the life of the dispute , and to have that lawyer’s duty and obligation properly discharged so as to protect the client’s interest, IF that lawyer knows that he or she is not properly trained in the art of negotiation?

What do you think?

For those of you who read this blog post and are not a lawyer or a dispute resolver expert - now that you have read what I have written - how do you feel that you can better protect your own interests if you go to engage the services of a lawyer to help you resolve a dispute in the best possible way, in the shortest time possible and in the least expensive way consistent with skillful representation?

You may now feel that you can ably converse with that lawyer to satisfy yourself that he or she is sufficiently qualified to discharge that legal obligation to you and maximize your chances of early settlement and minimize the risk of your lawyer manoeuvring you too fast towards litigious means and strategies to resolve your dispute in the courts. You may find that this blog post empowers you to remain in control of your dispute by being equipped at the first level of interaction with lawyers to find yourself the right lawyer to suit your needs.

Christopher Whitelaw