5.8 Negotiation Strategy and Client Counseling
Formulating and implementing a problem solving negotiation strategy is integrally connected to client counseling. If you have chosen a problem-solving approach you may have a challenging educational process on your hands regarding the client.
To be the most effective problem solver you need the client to buy into taking a more creative problem-solving approach to try to reach an early settlement. You will need a more detailed and complete understanding of the client’s goals and values. The better the lawyer understands the client, the better the lawyer will be able to determine a value for the case: the bottom lines for both parties, and build strategies for building trust and relationships between the parties. Also, the better the lawyer understands the client’s goals and values, the better the lawyer can search for a more particularized problem-solving solution.26Still, in the real world of lawyer negotiation, despite the careful planning of the negotiator, the opposition may not want to play. He may use the apparent cooperative setting to block giving truthful information, and discover the weaknesses in your case, without any trade of information and understanding of the weaknesses in his own case. Some even argue, that as in the international arena, it is ineffective if not unethical for a bargainer to worry about anything but his client’s (nations) own interests. Some considerations are that position bargaining strategies are a matter of human nature (inherent selfishness): that human nature dictates behavior, that in the end, requires the negotiator to be suspicious of and mistrust his opponents, and see any attempt to be open and cooperate as a manipulative strategy designed to give his opponent undue leverage in the resolution of the dispute.
In any event, it is true that lawyers need to be cautious in implementing problem solving models when their opponents may not be bargaining in good faith. It is important to realize, however, the advantages of cooperative problem solving in order to advice the client about the potential use of a mediator. Moreover, the lawyer needs to understand these two different strategies and approaches to negotiation—both position bargaining and problem solving, in order to plan and advise the client about the potential strategic uses of a mediator to help resolve the dispute.