The role of lawyers in a transaction ranges not only from document drafting and reviewing but also to negotiating. In fact, from my perspective, drafting and reviewing documents are the basic skills that each and every lawyer must be well-equipped with while negotiation technique is what defines an outstanding lawyer. To be honest, I would not describe myself as a rich-experience lawyer. I, however, was fortunate enough to be involved in several intense meetings serving for an M&A deal.
I start my career with the thinking that negotiation is a battle in which I must focus on building up and maintaining my arguments. My top priority at that time was to dominate the deals with my proposals and left no spaces for the partner’s lawyer. It makes me a difficult lawyer to get over with but absolutely in no positive manner. Over the years, I have gradually realized that the lack of experience and self-confidence has conservatized myself. In fact, I was self-opinionated because I believed that mine was supposed to be the best drafting to protect my client’s interests, and other suggestions, particularly from the lawyers of the other side, may not be up to that level and likely to jeopardize what I represented for. That illusion has evaded me from the fact that I was not confident enough to accept others’ drafting even if they may appear to be risk-free for my clients. Such an approach to negotiation could only work if my client is in a better position than their partners while for negotiation whereby the two parties were equal, the conclusion of the deal was significantly lengthened or even came into a dead-end.
To date, I would be much more relaxed if I have to face a lawyer who is typified as “tough” but I would not be so if my colleague sitting on the opposite side is characterized as “flexible”. To me, negotiation is an art of manipulation. Of course, the definition of “tough” or “flexible” varies differently from one to another, and clarifying such terms is not the subject of this article. A “tough” lawyer as referred herein reflects a person who is not willing to accept others’ suggestions. One prominent lawyer has once said that “if a clause is found to be invalid but in no manner causes any detrimental impact on our side, no questions should be raised by us upon it”. I have then come to a simple conclusion that it does not matter how many proposals raised by us are accepted by the other side but it matters which one we achieved. An experienced lawyer always came into the negotiation table with a friendly smile and an attitude that almost immediately creates an impression from the lawyer on the other side that their proposals have been considered entirely and carefully. Their presence makes the negotiation extremely productive as they would not spend effort and time on the clauses that they do not consider significant. Their mind is occupied with a clear-cut strategy on which are the red-flagged clauses and which ones can be traded-off. In that sense, their strikes are always well-targeted and they let the other side grabs “winning-points” on any provisions falling outside the “targetted area”. In the end, we may achieve the success rate in quantity but it becomes meaningless since the quality of the negotiation is safely in their hand.
What lessons can be learned?
A young lawyer would always be hungry for victories. However, their enthusiasm and dedication mirror a double-edged sword. On the one hand, it helps them to fearlessly stand up in a negotiation table. On the other hand, it lures them into a meaningless battle that they should not have stepped in. Bearing in mind that an experienced lawyer could create a “fake” intense battle over a meaningless provision so that it may absorb entire attention from the inexperienced ones. They fought that “battle” so hard as if whosoever achieves that clause would dominate the agreement. When the intension reached the peak, they slowly fall back and let the other lawyer grab that provision. Naturally, it will make that lawyer feel like he has achieved a significant victory despite being hardly the fact. Therefore, strategy before the negotiation is always the most important thing so that we are well-aware of what to focus on the table. Moreover, following and adjusting the pace of negotiation are other important factors. Whenever the tension and the pace of negotiation are being put forward, we may have the tendency to respond immediately without having a second thought. Therefore, under those circumstances, you could try to slow it down by taking a cup of cold water. A few seconds would help you to rearrange your thoughts and distribute the words correctly. Under whatsoever circumstances, a respectful attitude towards your colleagues are utmostly important. In a negotiation, you may lose your temper but not your professionalism.
I have attended some negotiation that the tension became so high that one lawyer lost his control and show disrespectful attitude towards his colleagues on the other side. At that moment, he has lost everything for which he argues before.
One should not conceive negotiation as a battle. Indeed, each negotiation should be considered as a precious opportunity for both parties to reach mutual understandings. The role of a lawyer does not only cease at protecting its clients’ interests but it extends to the successful execution of a deal. Good faith, from my perspective, is undoubtedly the vital element for a deal to be succeeded. Having said that, it would be too naive to arrive at the negotiation table with nothing more than good faith.