Australia: How to be a good negotiator - two litigators speak out

In brief - Your negotiation strategy depends on the circumstances

Are you crystal clear on what it is you are trying to achieve? How strong is your position? Is your opponent reasonable or belligerent? Who is the best person to deliver the message? Is the process capable of delivering what you and your client want? How well prepared are you to put your case?

Antony Riordan - Negotiation is about selling an outcome, selling an idea

As lawyers we negotiate on behalf of clients, but the most important negotiation is the negotiation we undertake on behalf of ourselves. That is about selling yourself, selling your brand, negotiating your position.

You will likely need to sell yourself to a prospective employer for the purpose of your career. We don't often stop and think, on an individual level: "I have a brand and I have to sell that brand."

We're all very different. Ask yourself: what are my strengths? What are my weaknesses? What makes me stand out? Don't be despondent because you don't necessarily have all the strengths.

You can't expect to be promoted just because you work hard. Working hard is a given. At the end of the day, whether you will be able to convince someone of something depends on what they actually think of you. You need the respect of your peers to be promoted. No-one wants to promote someone who would sell their colleagues for a chance to get that promotion for themselves.

I think that often people approach career negotiation the wrong way. They ask themselves: "What do I want to achieve?" This is misguided because the most important thing is that people have to trust you. They have to trust that you will perform consistently, that you will be a team player. This is worth far more than being a star.

If people don't trust you, if they don't respect you, you won't really achieve anything. If they don't trust you, it doesn't matter how brilliant, confident or outgoing you are.

So when you're working on your personal brand, make sure you put trust and performing consistently at the top of that list. It's no good being a superstar three days a week and then an absolute disaster on the fourth. Because it's that fourth day that undoes all the good. You have to be consistent. And building your brand starts the first day you arrive at work.

If you're perceived as a team player, that's worth way more than someone who is looking after themselves. You've got to be perceived as someone who puts their clients' interests and their team's interests before their own.

The position is no different when negotiating on behalf of a client. To sell your client's position, your prospects will be greatly enhanced if you have the trust and respect of your opponent.

Another fundamental if you're a lawyer negotiating on behalf of a client is to make sure that you know what your client wants to achieve. Don't make assumptions - ask them. Ninety nine percent of the time it won't be what's set out in the statement of claim. And make sure that whatever it is they want can be delivered by the process.

Keith Bethlehem - Choose your mediator by the strength of your case

As a defendant insurance lawyer, I come up against the same firms, the same opponents time and time again. When someone has built up a good reputation over many years, that reputation precedes them.

I have learnt that it is the most fundamental basis for a defendant in litigation. If you lose that, you lose a competitive advantage. You will lose your ability to conduct negotiations in the future.

Opponents know that once my clients have taken a particular position based on the merits of the case, they will not move from it. If the plaintiffs have no case or if a reasonable settlement cannot be achieved, my clients will litigate it.

In my experience, you need to know the position of co-defendants and their solicitors. You need to establish at a very early stage whether it's going to be in your interests to treat a co-defendant as an ally or a foe. Will they collaborate? The tactic you choose will depend partly on the answers to such questions.

If you know they're going to be a foe, if it's an us-versus-them, then clearly, you should do everything you can to undermine their position. But there will be occasions where undermining the position of a co-defendant or a third party may be detrimental and you may need to adjust your tactics.

One of the ways in which you can do that is to have discussions at the very early stage with the solicitors for the co-defendants and monitor their behaviour through the interlocutory processes, through early negotiations.

Mediation is increasingly the forum where negotiations are taking place and where matters are settled. It's certainly the way that the Federal Court is going and it's certainly the way that the commercial list of the NSW Supreme Court is going.

Don't see mediation as a lazy alternative to running a trial. If you go down that path you can jeopardise your client's position and end up with an unfavourable result. You've got to be as well prepared for a mediation as you would be to run a trial. That has cost implications and you have to explain that to your client. You need to educate your client about the processes that need to go into the mediation.

I see an increasing trend among lawyers to dispense with mediation position papers. I think this is wrong. Mediation position papers are very important. It's one of the very few occasions when you get to deal directly not with the lawyers on the other side, but with the client on the other side.

You need the client on the other side to have a particular mindset when you enter that room. There needs to be a fear factor. And the way you do that is with a well written, well researched, well prepared mediation position paper.

It's not a matter of copying and pasting your pleadings and putting a figure at the end. It's got to be something that's out of the ordinary. Hopefully you can find something in your case that is going to unsettle your opponent.

I suggest that you get to know the mediators around town and use the right one for the circumstances. Mediators are all different. Some are very rigorous in their analysis of the legal merits of each case, and I would use one of these if my client's case is strong and I want the merits to be ventilated. I would use a more commercially focussed mediator if my client's case is more vulnerable and I am looking for a forum to conduct a negotiation about money only.

It's important to establish rapport with the mediator and with the solicitors on the other side. It's a careful balance. You don't want to give the impression of weakness and you need to be inflexible on some points.

If you identify the bottom line, you need to stick to it, don't shift it. But at the end of the day, the whole point of negotiation is to find common ground and this needs to be considered when you and your client decide on the bottom line.

Try to think outside the box. And remember that your strategy will depend both on the nature of your opponent and the strength of your position. Negotiation, litigation, dispute resolution - these are all reactive processes. You need to adapt to suit the circumstances.

This article is an abridged version of a seminar presented in April 2012.

For more information about commercial litigation, please see the website of Colin Biggers & Paisley or contact Antony Riordan at or Keith Bethlehem at

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Keith Bethlehem
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