Legal Negotiators Vs Commercial Negotiators!

The Weekly Walkaway highlights negotiation in its ‘good’, ‘bad’ and sometimes ‘downright ugly’ forms. Newsletter Issue No. 42 (28th July 2023)

Giles Morgan (@Kahvay)

Jul 28, 2023

What to expect?

Thought of the Week - Legal Vs Commercial Negotiators!
This week’s Quote of the Week - “You can't win an argument. You can't because if you lose it, you lose it; and if you win it, you lose it.” Dale Carnegie

Remember: You are a negotiator!

You are always managing some form of conflict, a difference of opinion or interest.

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THOUGHT OF THE WEEK

Legal Vs Commercial Negotiators!

Hello and welcome back Walkawayer’s,

I was going to do a piece on the unfortunate Travis King, the young US soldier, who crossed into North Korea. His fate remains unknown and considering the US has no current official diplomatic relationship with North Korea it will make negotiating his release very challenging indeed.

So, I was going to write about how to negotiate when all you have to rely on are backchannels and third parties…. but…

I had a lovely lunch meeting with an old colleague Peter Watson, the brain and energy behind Watsons Daily (www.watsonsdaily.com), a daily newsletter focused on summarising all the best and juicy bits in the financial and business news to keep us all up to date and more commercially aware.

What caught my imagination for this week's Weekly Walkaway was Peter's success in the world of Law;

the students;
their Universities and;
the Organisations they then go on to join.

Peter has asked me to speak on his Pod, which will be an honour and I know a real hoot and I look forward to collaborating soon.

But so what? Well of course this triggered another age old question: ‘What is the difference between legal and commercial negotiation’?

So off I went, driving away, happily energised from our fascinating discussion and nourished with a not so quintessentially English crispy fried chicken and chips, from a quintessentially English country pub, and soon after I found myself arguing with, well, myself!

‘What is the difference between legal and commercial negotiation’?

There are huge, massive, gigantic, differences between sales / purchasing negotiation, for ease let's just call that ‘commercial negotiation’, and the oh-so-eloquent, robed and wigged world of legal negotiation.

What comes to mind when you think of ‘Legal Negotiation’?

For me, what comes to mind are;

Erin Brockovich
- Assertive, tenacious, yet empathetic. An unwavering commitment to justice, she fearlessly challenged ‘The Man’! Strong advocacy skills and persuasive communication. Relentless, formidable. A no-nonsense negotiator;
Legally Blond
- Self deprecating, resilient, charismatic and with an infectious charm. Her excellent interpersonal skills, unconventional thinking and creativity mixed with an air of understated intelligence (dumb blond) and underestimation prove invaluable. Her ability to remain composed under pressure allowed her to excel in her negotiations;
A Time To Kill
- Unwavering, unflappable, unruffled. The ability to think on his feet and adapt to unexpected challenges gives him an edge in the courtroom. Despite facing daunting opposition, he remains composed and persuasive, using compelling storytelling to sway the jury. His unwavering determination and integrity make him a formidable negotiator.

Or even;

Suits
- Dynamic and sophisticated. Confident and Charming. Razor-sharp wit, strategic thinking, and a mastery of legal manoeuvres. Every move is a game-changer in the pursuit of the WIN;
Ally Mcbeal
- Empathetic, unconventional and creative. Resolving disputes, using her witty, unorthodox tactics and sometimes vivid imagination to find unique solutions;
Better Call Saul
- Cunning and resourcefulness. Rule bending and blurring of ethical lines. Street smart, charismatic and a crafty master of manipulation. Persuasive, unorthodox, deceptive and at times thrilling.

And here I have an issue with my argument.

You see, I was expecting the usual misperception and misrepresentation. Hollywood polish, snobby, esteemed or even hick movie and TV lawyers and barristers, passionately arguing over the written law like it's some kind of epic battle of good vs evil! And with no common value or skill to us, commercial negotiators.

And yes.. Come on? It is just that. Scripted drama, mostly ‘bull’ and all about entertainment!

But on reflection I looked closer. And guess what I found? You’ll also find;

Assertive
Tenacious
Empathetic
Resilient
Unconventional
Creative
Unflappable
Composed
Integrity
Confident
Strategic
Unorthodox
Ruler Bending
Deceptive

These values and skills fill the same list I would create for my expectations of a ‘good’ commercial negotiator.

So let's step away from the movies and scripted TV. Because that’s just entertainment. It’s not real. So what is the difference between Legal and Commercial negotiation?

Well.. Once I got past this fact my own argument became clearer.

‘They’, Legal Negotiators, try to win the hearts and minds of their audience; the judge and the jury

They try to convince that audience that their argument, their interpretation of the written law, is correct.

people raising hands with bokeh lights — Photo by Jaime Lopes on Unsplash

Commercial negotiators, on the other hand, have no ‘written law’ to argue over. There is no right or wrong in their world. No rigid rules, just opinions and differences.

There is no judge or jury to impress.

Legal negotiation’s are heated courtroom arguments

Full of competition and ego, where legal teams try to destroy their counterparts argument and try to convince and change an audience's opinion or perception of what is right and wrong, and where THE WIN is decide by a higher authority, the Judge, and the only people who are satisfied at the end are those who WIN;

Commercial negotiators weaken themselves by arguing

It is just not in the other person's interest to agree with you so why argue, so you don't need to convince anyone of your righteousness, there is no single higher authority, no Judge, to decide for you both, you just have to satisfy your counterpart, to make them feel that they have won to ensure agreement. In fact, compete or argue and you risk ‘failure to agree’.

In legal negotiation the subject matter revolves around the interpretation and application of written laws, regulations, and established legal principles and not all parties want to be there.

The ‘Deal’ is a legal dispute, where there is a specific law or contract provision in question. In legal negotiation, the goal is often to prove one's interpretation of the law as correct to secure a legal victory.

horse figurine — Photo by Marie Bellando Mitjans on Unsplash

In commercial negotiation both parties want to be there and the subject matter primarily centres around interests, financial terms, products, services

There may not be any specific written laws dictating the negotiation outcomes. Commercial negotiators aim to reach an agreement over a difference of opinion or position but they choose to be in the negotiation. Their aim is to reach an agreement.

Commercial negotiators do not have a higher authority like a judge to make the final decisions for them. Both parties must come to an agreement through mutual discussion.

Commercial negotiations are about reaching agreements on various aspects of a deal, and there may not be any legal violations or disputes involved. The goal is to find acceptable terms that satisfy both parties' interests.

In summary

So indeed, there are significant differences between commercial negotiation and legal negotiation. The core distinction for me lies in the word ‘ARGUMENT’.

Legal negotiation revolves around interpreting and applying written laws, with the goal of arguing and winning a legal case governed by a higher authority where the decision is not mutually acceptable, while commercial negotiation focuses on reaching mutually acceptable, satisfactory, terms, agreements.

I feel I’m just scratching the surface here. What do you think?