Reading the comments to a post on negotiation on Ken Adams’s drafting blog (one of which made the point that lawyers are trained to argue, not to negotiate), got me thinking about the differences between argument and negotiation. It is quite true that lawyers often confuse the two. I have to admit that I sometimes have trouble letting go of an argument myself, and sometimes forget that arguments that are not carefully attuned to their audience have a tendency to annoy rather than persuade. I was pegged as an attorney from my childhood because I love to argue, and I still enjoy getting into a heated political debate, or hammering home a point in a brief or in front of a judge. When we lawyers indulge in our natural desire to argue to the exclusion of other skills that are essential to negotiation, however, we can create unnecessary antagonisms, and make it harder to achieve an agreement. Even in litigation, argument for argument’s sake can be counter-productive: we can draw a distinction between arguments that are designed to be persuasive, and arguments that only get the speaker worked up, while doing nothing to move the listener. Unfortunately, too much of litigation consists of argument for argument’s sake. If only we could follow the advice of that great trial lawyer Abraham Lincoln, who suggested that we should never quarrel.
When I’m doing mediation, I make a greater effort to suppress my natural desire to engage in argument, especially arguments of the second sort. I try to coach the participants in mediation to get their points across in a way that the other side will at least hear. This is not to say that I oppose vigorous advocacy in mediation, or any other aspect of conflict resolution. I only suggest that what can sometimes pass for vigorous advocacy may be counter-productive if it causes the opposing party to move away from your position. In mediation you sometimes see lawyers or parties ignore the opposing party, and address their arguments to the mediator in an effort to persuade the mediator of the soundness of their position. You also sometimes see advocates in mediation pressing a position even where they can see that their words are causing distress or withdrawal on other side of the table. Advocates sometimes forget that the goal of mediation is to persuade the other side to modify their position, not to antagonize the other side into hardening their position. Good negotiators know how to listen very carefully to what the other side is saying, and to frame their responses in a way that addresses the other side’s concerns, and gives them something new to think about. Bad negotiators just keep beating their heads against a wall in the vain hope of making an impression. One of the purposes of mediation, therefore, is to teach people to be better negotiators.
(Asier Ibanez photo for Google Earth)