Consensual Dispute Resolution

Dependency and Power: Removing Hardwired Hindrances to Negotiation

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The Traditional Lawyer vs. The Modern Lawyer

With the advent of globalisation and modernisation, the role of a lawyer is no longer restricted to the courtrooms. The essence of being a lawyer is to able to protect the best interests of one’s client, and to resolve the disputes which have arisen. Generally, the preferred method of resolution depends on the nature of a dispute. While the adversarial approach is necessary for certain types of disputes, it should not be the ‘go to’ option for all. The emergence of negotiation as the preferred means for dispute settlement for commercial and corporate disputes has changed the traditional definition of a lawyer to someone well-versed with the intricacies of law, and capable of protecting his client’s best interests. To negotiate means “to communicate with another party for the purpose of reaching an understanding.”[1] Reaching an agreement involves dealing with several aspects like emotions, and strong and weak positions, inter alia.

Addressing the Problem of Distinction in Roles

Lawyers are introduced to the adversarial approach first in their education, and then in courtrooms. Consequently, certain aspects of it are hardwired in their minds. The court proceedings permits only one party to be successful, while the other one suffers a loss. The success is determined by which party has a stronger case in the mind of the Judge. The lawyer plays a major role in winning the case. Hence, once parties enter the litigation process they hand over control of the conduct of their dispute to their respective lawyers.[2] In other words, this approach functions on the question ‘which party will win, or is likely to win’?

However, in a negotiation, the role of a lawyer is limited to representing the best interests of his client. He is not determined to make the other party lose, be in a better position than the other party, or display the strength of his client’s position. Approaching a negotiation will most likely lead to its failure. The reason behind this is that the parties are fully capable of going to the court if the other party is determined on following the adversarial approach.  This new role of a lawyer in a negotiation requires him to back up his client. Ultimately, the client is the one who takes the decisions and is in control of the entire process. The lawyer has to go along with the flow in which his client is driving the negotiation in. This role is that of a facilitator, vital nonetheless for the negotiation to be successful. Furthermore, the lawyer has to make sure that his client’s interests are protected, and the legal intricacies are dealt with. Therefore, a skilled negotiator will realize the difference and switch his/her role accordingly.

The Reason Behind the Distinction

The difference in roles of a lawyer in a negotiation, as compared to litigation, emanate from the absence of the adversarial nature. If a side were to lose in a negotiation, the entire purpose of having it in the first place would be defeated. The parties try to look for a common ground from where they can build on. They try to align their interests so that everyone can benefit through mutual cooperation, and avoid time-consuming and expensive litigation. When one side tries to establish that they are in a stronger position, the other party tends to get defensive and less willing to reveal their weaknesses and interests. The objective in a negotiation is to create an amicable atmosphere, which fosters reaching that middle ground to build on from.

Further, the difference arises from the fact that the parties are encouraged to find their own solutions, negotiate their own agreement, and implement the same.[3] The rationale behind such an exercise is that the parties have to take over the control. This responsibility undertaken by them makes sure that no decision is forcefully imposed on them. They accept the consequences which follow more readily as those are the result of their own decisions. This is generally regarded as being “psychologically advantageous,” wherein the parties are satisfied with the outcome because of the fact that they had figured it out on their own.[4]

This process involves: [1] A dispute between parties; [2] Willingness to resolve the dispute without litigating; and, [3] Finding interests which can be better served through cooperation. Examples of the aforesaid, and the role of a lawyer in balancing the power and dependency, is presented in the next part of this article.

Working on the Problem

A person goes to buy apples in a local fruit market. The fruit seller quotes a price which leads to disagreement. The person has the option of going to other fruit sellers or reasoning with the current one. He considers the factors like wastage of time and effort, and the possibility of not finding better fruits at a lesser price, along with the advantages of  negotiating the current price.

While there is a fine line of difference between bargaining and negotiating, the prospective factors which play a role in this example remain the same for academic purposes. The fruit seller is also aware of his position in a market. The person while negotiating the price talks along the lines of “this is the price I can offer” or “this is the price I am willing to pay,” instead of “I can go to the next fruit seller.”

Blurred Lines Negotiation

Robin Thicke’s music “Blurred Lines” was allegedly infringing upon the copyrights of the other party. The court ordered $7.3 million to be paid as damages, when the amount sought was $25 million.[5] The failure of preliminary negotiations prior to the suit involved certain aspects of reputation, emotions, and monetary interests. The result was arguably not beneficial for either side when compared with the possibilities the settlement could have offered.

If they had been advised to settle, a significant amount of legal costs and damage to reputation could have been avoided, while the other could have received a more desirable amount for alleged infringement. Mutually resolving the dispute with better results is possible when the emotions or the respective positions of the parties do not become a hindrance to the negotiation.

Spotify-NMPA Negotiation

The dispute between the parties arose when Spotify didn’t pay to the song owners when royalties for songs streamed from Spotify could not be calculated. National Music Publishers Association (NMPA) stepped in to protect the rights of its members, and reached a settlement with Spotify. The terms of the settlement insured that past and future royalties will be paid, along with punitive damages. It also implemented measures to prevent future infringement.

The publishers and songwriters were hesitant to settle, in light of the class action lawsuits filed against Spotify. Those who settled would also waive their rights to join the class action lawsuit or individually file a suit. In order to tackle this, those settled were guaranteed compensation for the unlicensed songs streamed on Spotify.

While a lawyer’s mind would advocate litigation, the settlement in the present case was a better option. It ensure good relationship with the company, apart the amount sought by the parties being paid along with damages and compensation. Parties had to realise that their best interest was in settling. Sometimes it is for the lawyers to make them reach this realisation.

Conclusion

A lawyer needs to have an entirely different mind-set while negotiating. He should be open and flexible, while continuously fighting his urge to establish himself as the smartest person in the room, or display that his client is in better position. This requires battling with the hardwired approach, tactics, and mental process, imparted by the legal profession. The aforesaid can be achieved with consistent effort, and awareness of the ultimate objective. The lawyer needs to change from his lawyer suit to a negotiator’s suit while dealing with such

[This post has been contributed by Aditya Singh Chauhan, 2nd year law student of National Law University, Jodhpur]

Reference

[1] Bryan A. Garner, Black’s Law Dictionary (5th ed. 2005)

[2] Maxwell J. Fulton, Commercial Alternative Dispute Resolution, Law Book Co Sydney 1989, p. 103.

[3] Family Law Council Discussion Paper Family Mediation (1990) p. 8.

[4] G. Pears, Beyond Dispute Alternative Dispute Resolution in Australia, Corp. Impact Publications Pty Ltd, p. 71.

[5] Pharrell Williams v. Bridgeport Music Inc., LA CV13-06004 JAK (AGRx).

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