Effective Negotiation – delving into the dark arts

Becoming a top lawyer requires more than an expertise in an area of law. Academic excellence may be enough to shine as a trainee or junior associate, but stepping up into a more senior position also requires a range of softer skills, generally learnt through experience.

One of those skills is loosely termed ‘the art of negotiation’ and is crucial to representing clients effectively. Honing this dark art will sharpen your abilities, make you stand out from the crowd and turn you into a deadly weapon for your clients to wield. Just ask Harvey Specter!

There are two sides to effective negotiation. The first relates to understanding the techniques to use yourself, and the second relates to recognising and neutralising techniques used by your opponents against you.

As mentioned earlier, there is no substitute for experience in this, so we took the opportunity to pick the brains of one of the more experienced lawyers in the City of London. Simon Rous is Managing Partner at Ashfords LLP and head of the firm’s London office. He is a trusted adviser to public companies, start-up businesses, non-UK companies and venture capital investors. Simon specialises in mergers, acquisitions and disposals, joint ventures, MBIs/MBOs, venture capital and shareholding structures.

He gave Ardent his take on some of the lesser known techniques inherent to ‘the art of negotiation’, derived from decades of tough talking.


Top Ten Negotiation Techniques

Choice of negotiators: Agree internally who will lead negotiations. If it is you as the lawyer, take your client to one side and beg him/her not to interject without your agreement. Your own client (if uncontrolled) can be your worst enemy. Sit side-by-side with your client so you can write or post each other confidential exchanges. Things like; ‘they are about to concede the point – say nothing.’

First Impression: It will be difficult to change a first impression, so get it right. Whether your role in the negotiation is ‘Mr Reasonable’ or ‘Mr Exact’, rehearse it and get comfortable in the role before you meet your counterpart.

The illusion of control: If your counterparts feel denied a share of control, they will expect a trap and baulk at everything you propose. Better to give them the illusion of control by following their agenda and clearly acknowledging their concerns and mirroring their language, rather than brushing over them.

This is market practice: A hateful phrase which really means ‘our firm is bigger than yours and knows more about what goes on in the market.’ However, it can be a useful tactic against a firm that is easily cowed.

Emotion: Emotion can really disrupt negotiations (at least with Anglo Saxons), but if used strategically, can be a useful tool. Many Anglo Saxons would rather concede a point than incur an emotional exchange.

Naming your opponent’s weapon: Experienced opponents will often use emotion in this way, or other tried and tested techniques, such as showing off quoting case law or other big deals done. If your opponent does this, make it public by saying something like; ‘I see you feel emotional about the environmental warranties. Do you have a particular sensitivity you want to share with us?’ I call this naming your opponent’s weapon.

Walking away: Be careful when you use this. The other side might call your bluff and ruin your credibility for the rest of the negotiations. Used correctly it can be very effective e.g. by private call lawyer-to-lawyer with a line such as; ‘my clients had a bad experience with this issue on a prior deal and will walk away. We both want this deal to happen, so let’s find a compromise.’

My client board will never accept that: Best used with the same precautions as in ‘walking away’ above. It is particularly helpful where you act for a global company, and you can tell your counterpart ‘this deal is only a small item on the board’s agenda and we will only get one crack at getting it approved.’

Ego matters: Failing to ensure your counterparts feel respected and listened to will only stiffen their resolve.

Humour: If you can share humour you are already halfway home (but don’t relax your guard)!