publication of the International Legal Technology Association
Issue link: https://epubs.iltanet.org/i/231030
NEGOTIATING WIN-WIN FEE ARRANGEMENTS Interests, on the other hand, are the concerns and motivations of those parties in the negotiation, which you really need to uncover to be able to satisfy the other parties' needs and to share your own so that these can also be taken into consideration during the negotiation. identify interests just by asking some very simple questions. Through effective questioning, listening, probing and summarizing, you can conduct a mutually rewarding negotiation. Now ask yourself this: If you were the client, how willing would you be after such an exchange to see how you could "make this work for both of us?" The following story helps illustrate this point: There are two sisters. Each sister wants the single remaining orange in a bowl. Each claims to the other that they need the whole fruit. That is each sister's position. However, when their mother asks each sister in turn why she wants the orange, the first sister replies that she wants to drink some freshly squeezed orange juice. The other sister wants to use the orange rind to bake a cake. The reasons each sister wants the orange (i.e., their interests) in this case are not mutually exclusive. As you probably can predict, the wise mother merely grates off the rind from the orange, then squeezes the juice out. Each sister gets her whole orange. The moral of the story is that the most effective way to address issues in negotiation is to determine each party's interests. You can easily DON'T WAIT TO BE CREATIVE Imagine the following scenario: The law firm and law department (or client) both recognize there's a difference in what they think a matter will cost. They try to reason with each other, trading points back and forth, but to no avail. The client may then say, "Look, we need you to agree, or we will engage someone else." Only then do both parties sit down and figure out how to make things work — probably out of sheer frustration. The above scenario outlines a typical negotiation discussion. It also illustrates each of the three main negotiation modes and the typical sequence in which they are used: •Rationale: This is where logic and argument come to the fore, explaining why one option makes more sense than another. It's not surprising that this approach is much favored by those of us in the legal profession. •Power: The term "power" means you have something that the other party needs or wants.