Never Underestimate Empathy in Negotiations: Finding a transnational ethical standard

 Never Underestimate Empathy in Negotiations: Finding a transnational ethical standard

Attorneys play a key role to obtain the best possible result from cross-border negotiations by balancing the different perspectives involved, while protecting the interests and assets of their clients. A key virtue that they must bring to all negotiations, which is often overlooked, is empathy. Far too often negotiations are approached as a hard-nosed, winner-take-all setting. This is the wrong approach as my explanation of why an empathic ear can make or break a negotiation will show.

Attorneys may feel slightly stuck in a paradox. On one hand, clients often retain, as Robert H. Mnookin,  Scott R. Peppet and Andrew S. Tulumello once put it “attorneys as their agents of aggression… [and] … assume that legal negotiation is supposed to be characterized by threats, power tactics, and emotional fireworks.” On the other hand, they added, many “clients increasingly … claim to want their lawyers to behave in a more efficient and civilized manner.”

I always bear in mind the old proverb: “When in Rome, like a Roman.” For many situations this is a great rule of thumb: adapt to and replicate the behavior of your environment. Nonetheless, in international business or legal negotiations, as Thomas Donaldson argued twenty-five years ago, it is not adequate just to copy all the setting, primarily because some of these conducts might go against the interests and ethical standards of your individual case. The trick is to adapt to a foreign legal or business context without compromising your own fundamental values.

What is the best way to adapt? Everyone involved in a negotiation should observe the general landscape and understand how decisions stemming from a negotiation are hampered or benefited by relevant factors such as cultural differences, values, ethics, personal mindsets, perception and attitudes.

An attorney’s role prior, during, and after negotiations is of paramount importance. In preparation of a negotiation, they should analyse the facts to get to know the case, understand the setting and forecast a positive outcome for the clients.

The first negotiation in the process arises between the attorney and his client. Based on the client’s expectations, it is important to define the scope of action and clarify the limits and the degree of flexibility to negotiate. Attorneys need to obtain from the client reliable information, precise facts, expectations, tools, terms and amounts available to negotiate.

Continuous coordination with the client is necessary to achieve successful results. Attorneys should guide clients to understand the opportunities, the risks, the options, the potential results, and the consequences that stem from making one choice or the other.

Attorneys have the ability to forecast the likely outcome of a negotiation, and what could be earned and lost if it turns into a litigation or arbitration. Whether the case is a winner or not, attorneys have the ethical duty to tell their clients. In practice, this is not followed by certain attorneys whose financial interests are to carry on with the dispute despite the clients’ benefit and interests. Unfortunately, this unethical practice has become a global phenomenon.

Regularly, settling is better than going to trial, particularly in terms of time, money and certainty. In multicultural cross-border negotiations, attorneys should investigate the profile of the people sitting across the table. Who are they and what is their power to make decisions?

It is crucial to find out what the interests of the parties are, and what is at risk. What are their strengths and weaknesses? Particularly, analyse which are the legal provisions that can help or damage their case. Likewise, be aware of the composition of your own team, paying attention to who will be the lead.

In multicultural contexts, it is preponderant to analyse what is the negotiation style of all the parties involved regarding the communication style. These are some questions to bear in mind:

Is their style direct or indirect? Formal or informal? Silent or expressive? More emotional? Confrontational or accommodating? Individualistic or collectivist? Hierarchical or egalitarian? Dynamic or stable? Focused on winning or on social relationships? Focused on past, present or future situations?

It is necessary to analyse and understand the cultural differences in the communication style of the agents that will participate in the negotiation because these factors will have a direct impact on the final settlement.

Besides the culture, ethical practices also have a major impact on the negotiation process. In international settings, defining standards of ethical conduct is a complex task because each participant was raised in a different environment. Therefore, taking into account cultural and ethical references and the fact that they were individually garnered is essential to the process. Hence, some practices can be considered unethical by one culture and ethical for another. Some actions, however, are, arguably, simply wrong regardless of where they take place.

In addition to the ability to distinguish when an action is correct or incorrect, all differences should be treated in a respectful, tolerant and empathetic manner to overcome any obstacles towards obtaining a successful result.

After the initial investigation is completed, attorneys can make a diagnosis and are ready to speak the same language as the other parties, this while showing empathy to later agree on the grounds of reciprocal benefit.

While some people perceive empathy as a weakness, it is. in fact, a valuable instrument in multicultural scenarios. Empathy promotes the exchange and transparency of information, creates value for the parties and avoids damaging the relationship between the parties.

While sitting at the table listen, and listen carefully to the parties’ interests. Ask questions and listen to the response. Demonstrate understanding and empathy to the other side, adjust the conduct to the cultural differences found, show respect while exposing the client’s needs in a clear and summarised manner and negotiate a reciprocal process.

To the extent that it is possible, verify that the interests of all the parties are contemplated in a final agreement that, preferably, fits everyone. Develop different solutions to choose the best option while focusing on obtaining win-win results for everyone.

In the event that the negotiation is not running smoothly, explore other possibilities. Make a written proposal, request for a new meeting with lawyers and clients, look for more options.

Reframing the position of the parties can help construct a bridge and find a point right in between the extremes that allows all parties involved to negotiate in balance. Create a new setting through strategies that boost effective and acceptable behaviors for both parties.

Look for cooperation and not for competition nor for confrontation with all the parties sitting at the table. As Mnookin, Peppet and Tulumello put it, “…many lawyers and clients share a mindset that encourages adversarial confrontation rather than collaboration.”

In an international context, a problem-solver approach is convenient to settle or reach an agreement. An environment of cultural harmony should prevail during cross-cultural negotiations. This way, the client’s interests are protected and the possibility to call for further negotiations stays open.

In a nutshell, in international and multicultural negotiations, it is essential for attorneys to handle as many aspects as possible that arise during these negotiations, through a thorough analysis of the case, interests and weaknesses of the parties. Never forget empathy throughout this process.

Look for the key differences, increase the ability to adapt personal behavior within a foreign culture, and construct bridges between multicultural parties that will agree on a settlement. Do not feel that you have to do like the Romans in every detail or situation. Adapt, but stick to the basic cultural values in business and the legal profession, not least your emphatic instinct. During the negotiation process, respect is essential, as well as learning to spot unethical practices that will hamper the final result. Settling through talks can be better than going to trial and it is not worth the risk to scuttle your chances just because one side is not listening to the other.

Image credit: Meatle, under Pixabay licence.

Ana Jaimes

Ana Jaimes is an arbitrator and counsel specialised in international investment and commercial arbitration.

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