Comment: Taking a position on interest-based negotiation

TWO winners are better than one in a dispute, writes Rachael Bicknell

Hollywood has a great way of glamorising litigation lawyers as hard-bitten and combative – and few lines of dialogue promise the same animosity as the classic: “I’ll see you in court!”

At this point it can become as much about the lawyers as the clients they represent. Litigation can have a way of creating that dynamic, and while “I’ll see you in mediation” might not carry the same potency, it is often a more constructive route for those involved in a dispute.

Traditional litigation strategies which involve ‘positional bargaining’ are often advanced by those who will tell you that a legal battle until the onset of ‘litigation fatigue’ is a necessary evil before being ready to engage in interest-based negotiation or mediation. That’s a misconception and demonstrates that the Scottish legal profession needs to do more to foster a culture change within the profession to meet the needs of the business world.

‘Interest-based negotiation’ is the foundation of any business transaction. It involves a process of collaboration to develop mutually beneficial agreements based on your interests – whether that be the sale of your company, hiring a new managing director or negotiating a new distribution agreement. Yet, when it comes to legal disputes, ‘positional’ demands based on your legal rights is often the default negotiation strategy.

There are already many litigation lawyers out there who are passionate about resolving disputes through the promotion of conflict management techniques, interest-based negotiation and mediation. They know that the requirement to act in your best interests is not served by promoting and encouraging entrenched positions. They understand the commercial interests and objectives of your business and the cost to you of a pyrrhic victory. However, the business community has an important role to play in fostering further change in the management of disputes.

You know that in reality you need a chessboard strategy. You want to engage in a process where you can influence and decide on the outcome rather than be subjected to cross-examination and the decision of a judge. You recognise you need a lawyer who has the skills to be tough on the legal problem and creative on developing strategies to find a solution. Someone who adds value to your business by advising on how to manage and prevent the escalation of the dispute, because they can see the bigger picture. In other words, a worthy trusted advisor.

Most business people accept that trading blows is rarely (if ever) an effective way to do business. The same principle holds true to the management of disputes – adopting a cooperative approach to negotiation, which is based on interests and backed up by the threat of litigation, results in better outcomes for all parties to a dispute.

In time, all litigation lawyers will embrace interest-based negotiation and mediation as a commercial imperative, otherwise they will position themselves out of the market. Until then, this is an opportunity for the business community to take the lead and demand something more than just a street fighter. Even if that would sound cooler in the movies.

• Rachael Bicknell is a dispute resolution associate at HBJ Gateley