The Negotiator Magazine

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Its approach is to provide advice to the lawyer who seeks to work collaboratively and create value in negotiations. Early in the book the authors focus on the central question for collaborative negotiators: “How can you create value while minimizing the risks of exploitation in the distributive aspects of a negotiation?”

The authors conclude that “this tension cannot be resolved. It can only be managed.”(p.27). We are presented, therefore, with a guide to managing collaborative negotiation, filled with clear examples and carefully considered rationale for the essential steps and techniques that are necessary to achieve this goal. It is a rich resource.

More than this, we learn a great deal about the principal-agent relationship that lies at the heart of our engagement of a lawyer. Unquestionably, the inclusion of an attorney as a part of the negotiating team brings legal knowledge to the process, but what more should we expect? The lawyer also brings their reputation and their contacts to the table and, ideally, their negotiating training and skills. What then is the role of your attorney to be in a negotiation? You will find valuable insights into the attorney-client relationship.

Most importantly, however, this is an excellent work on the art of negotiation. For the negotiator, whether attorney or not, the concerns are very similar. The reader will find valuable work on identifying and quantifying risks and on effectively managing them. This is the critical stuff of representations and warranties, conditions and remedies that need to form part of the negotiation as well as its following contractual document.

Appropriately also, the reader will find cautionary advice on managing the contract preparation process itself. This is the realm where creative thinking and writing meet legal “boilerplate” and battling egos may crush deals in the writing of the agreement. It is also the land of judicious decisions to select wisely among the host of perils that may loom ahead and only deal with the most serious of them. “The mark of a good lawyer,” the authors state, “is knowing when to press for certainty and when to leave terms for ad hoc resolution down the road” (p.137).

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