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At a time when our legislators are proscribing mediation and meaningful negotiation, I’m frequently arriving at the same hurdle. Some lawyers don’t speak to other lawyers. And as the digital natives graduate from law school, do we face a future with lawyers who have lost the art of verbal communication? We will be unable to meet our legislative and, surely, our moral requirements to negotiate or mediate unless we are prepared to change.

I love negotiation. It’s an exciting and creative process that occurs when the parties prefer to invent their own solution for resolving conflict.[1] Instead of subscribing to a set of rules imposed by another, or in light of there being no other ‘rules’, they write their own rules. In an ideal world, this sounds great; take control of your own solutions and situations and direct your own path.

Good negotiating is not bullying to get a bigger piece of the pie, but unfortunately that’s what often passes as negotiating. Lawyers and clients miss the brilliance of real negotiating and we are a poorer culture for that. To truly negotiate takes great communication skills and listening is the most important skill of all. From there we can engage. To negotiate you have to engage. This means being able to articulate not only what you desire but to empathise with the other side.

Imagine a world where everyone could negotiate and resolve conflicts that came their way? What if people were honest and authentic in their communication, brave enough to put their viewpoints and concerns on the table without fear of reprisal or tactical manoeuvres. Imagine if people were genuinely concerned for the good of everyone in an outcome.

Now, imagine lawyers facilitating this. Does this sound like justice to anyone?

Instead of creating justice, we see our legal system diminished by individualistic ambition.

The will to win should not be the driving force of our legal system. There are more important values to aim for.

It looks like we may be part of the problem here, lawyers. Research indicates the presence of attorneys who are win-lose oriented in legal battles may pressure their clients toward “winning” when options for settlement may clearly be present. This is further complicated by the way legal services are charged[2]. Lawyers make more money in the short term by not settling.

Settling needs to be sexy.

Advice I was given in my very first legal job as a paralegal has always stuck in my mind. Lisa was a great lawyer and award-winning business woman. She told me, “Good lawyers don’t end up in court”. Her focus was on negotiating settlements for a client. This takes mastery of communication skills.

Bravo to UNSW for introducing a broader skill test as a requirement for entry into law. It is troubling to see the texting generation and a loss of verbal communication skills emerging in the legal profession. How can we meet the legislative remit for mediation if we have lost the art of verbal communication?

I have found myself discussing this concern with other colleagues and I am not the only one to have experienced this. The problem, we have lawyers stating they “Don’t do verbal communication”. What challenges do we face when Gen Y don’t use the phone, preferring to text or email. Clients rely on their representatives to have superior communication skills to deal with difficult negotiations. It is truly a concern.

If I ever need a lawyer to represent me, I will interview them and assess their face to face, verbal and non-verbal communication skills. I won’t be assessing their email and text writing skills. If they don’t have these communication skills I know they won’t negotiate for me. (And my bill will likely be higher).

My dad once gave me some great advice in my early 20’s but it took me a long time to understand it. He was a cattle man, a larrikin and respected by his peers. He said “Always leave something on the table.” I was aghast when I spoke at his funeral and the attendees overflowed from the church, the entry and into the car park. I have no doubt now this is the reason the church overflowed.

Even books with ancient wisdom advise us to leave some for others to glean. So it is with our negotiations. Long term it’s in your best interest to allow your opponent some dignity and respect, even (and especially) if they have made a mistake. No one likes to be taken advantage of and we are all human with the potential for mistakes. I have finally realised what my dad was trying to tell me. Long term relationship is more valuable than short term gain.

Will the future of law be more of the tougher ‘Suits’ style approach, where opponents are ground into the dust? (And I love watching Suits by the way I’m a total fan) Or will we create a culture and industry of great negotiators? I know what I am choosing.

Kayte Lewis is a lawyer, mediator and professional development specialist with a passion for communication and helping people find their voice.

If you want to improve your communication skills and be a better negotiator you could attend one of our workshops in Sydney & Melbourne or consider one of our coaching options.

Call Voice Consultants and Advocates today (02) 9261 1954 or email me directly

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[1] Essentials of Negotiation, Lewicki & Saunders 2016

[2] Deepak, Gillian & Mruninghan in When Winning is everything’ Harvard Business Review May 2008

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