Hollywood has a great way of glamorising lawyers as hard-bitten and combative – and few lines of dialogue guarantee the same on-screen drama as the classic: “I’ll see you in court!”.
Off-screen, in the real world, disputes are (usually) less dramatic. However, ‘positional bargaining’ – “I won’t go lower than £100,000” or “I demand you stop building on the boundary of our properties” – is practised by business leaders and lawyers alike. Before you know it, the courts have become your battle ground and the dispute has become as much about the lawyers as the clients they represent – not least because of the costs racking up. Litigation has a way of creating that dynamic, and while “I’ll not see you in court” doesn’t carry the same potency, early intervention through conflict management and negotiation is almost always a more constructive route for those involved in a dispute.
Even Suits star, Harvey Specter – the egotistical (“sorry I can’t hear you over the sound of how awesome I am”), self-proclaimed “best closer in the City”, who is never one to shy away from a challenge (“have goals so big you get uncomfortable telling small minded people”), will take negotiation over litigation any day of the week. Whilst he and his new sidekick, Samantha Wheeler, like to street fight in the ring, when it comes to getting their clients out of a jam, they adopt a poker-game strategy every time.
Knowing your opponent, paying attention to the cards and what’s going on at the table, is the key to negotiating better outcomes. This type of ‘interest-based’ negotiation – “This is why I need you to stop building on the boundary of our properties” – is the foundation of any day to day business transaction; whether that be the sale of your company, hiring a new managing director or negotiating a new distribution agreement. An open dialogue about interests gets to the centre of the issue (or conflict) and leads to creative thinking (in the words of Mr Specter “when you’re backed against the wall, break the goddamn thing down”) and a collaborative approach to developing mutually beneficial solutions. Yet, when it comes to disputes, ‘positional’ demands based only on legal rights is often the default negotiation strategy.
A key theme at last weeks’ Law Society of Scotland “Future of Commercial Dispute Resolution” conference was that the Scottish legal profession needs to do more to play a constructive role in resolving disputes. As one panel member put it “are we in the business of selling conflict or are we in the business of selling solutions?”. For years the RICS has been critical of dispute resolution procedures being employed too late, once legal costs have racked up, commercial relationships have been damaged and positions have become deeply entrenched. As a result, the RICS developed a “conflict avoidance pledge” which encourages dispute avoidance and early engagement to find solutions and keep commercial relationships intact. Lawyers need to be more innovative than ever to keep up and best serve the interests of the business community and the legacy of their businesses and firms.
There are already many lawyers out there who are passionate about resolving disputes through the promotion of early engagement, conflict avoidance, interest-based negotiation and mediation (before litigating). We know the requirement to act in your best interests is not served by promoting and encouraging entrenched positions. We understand the commercial interests and objectives of your business and the cost to you of a pyrrhic victory. We deliver a poker-game strategy. It’s time the rest follow Suits (pun intended). Until then, there is an opportunity for business leaders to demand more than just a street fighter.
Squaring Circles is the trading name of Squaring Circles Dispute Management Limited, registered in Scotland. Registration number SC641319. Registered office at Caledonian Exchange, 19A Canning Street, Edinburgh EH3 8HE.