Softly, softly: negotiation in litigation

Bernhard Schmeilzl considers tactics for negotiation in litigation

Time and again, litigators must decide when to fight hard and when to be more appeasing – it’s a key part of the job. But they must also ensure clients are aware of the tactics behind this decision and demonstrate to them that it’s not just about their personal manner or preference – a lot of technique is involved. This is particularly important when a client’s jurisdiction or culture is different to that of the litigator – and, in such cases, it’s vital to ensure that misunderstandings don’t occur. 

The benefits of a softer approach 

There are numerous benefits to a softer approach: it’s always best, for example, to avoid a courtroom battle so as not to risk unravelling a long-standing commercial relationship between opposing parties. Often, in these cases, clients might not understand why their lawyer isn’t being harsher during the dispute, but afterwards, they’ll probably understand how important this tactic was in preserving a vital business contact. Similarly, in divorce cases, family lawyers aren’t there to further elevate high-running emotions – instead, a calming legal presence is needed – and can often be fundamental in attaining an agreement that suits everyone best. This is especially true when children are involved – the smoother the court case, the better equipped the parents will be to have a good co-parenting relationship. 

When a harder approach is crucial

Harder-hitting approaches can also be vital at times – especially when the opposition is being aggressive. You don’t want to be viewed as the passive lawyer who shies away from being a bit more brutal when you really need to be. Otherwise, you may find yourself garnering a reputation – perpetuated by clients who view your softness as a failure to represent them properly – for being incompetent. 

Cultural perceptions of litigation styles 

My firm often receives complaints from German clients who think that English lawyers’ approach is way too polite and slow – but then, we also receive calls from English lawyers who feel that German clients are blunt, too quick to sue, and unrealistic in their expectations of the litigation process. A lot of the time, we find ourselves having to navigate cultural differences and managing our clients’ expectations – but really, the choice in approach is dependent on what will create the best outcome for the client – rather than cultural norms. 

So what style is appropriate? 

Ultimately, litigation styles are largely dependent on the type of case at play. Of course, clients will often look for lawyers who echo their own personality and cultural traits – but litigators aren’t doing their clients a favour by simply echoing their emotions. They must assess and persuade their client of what is in their best interest – and the best approach to take. This of course requires lengthy experience and the ability to handle interpersonal client relationships – as well as an overarching emotional intelligence. This is hard enough in itself – but even more so when your client comes from another jurisdiction! 

The main aim is to ensure that legal project teams looking after foreign clients factor in enough time to explain and smooth out variations in cultural expectations and properly communicate why their style is different. Demonstrating this to clients from the very beginning will ensure that their expectations are managed and they’re able to construe their lawyers’ behaviour despite the difference in background. It’s an important ‘soft’ element which needs to be weaved into the project plan – and it can truly make a difference, helping your client to keep faith in the legal team throughout the process. 

Otherwise, you could find yourself in a situation where the client walks – and everyone loses. It would be far smarter to make extra sure that everyone appreciates the stylistic and behavioural differences at play. But there must also always be someone in the team who shares the same jurisdiction and background as the client, who can be the main driver in bridging the gap. 

Bernhard Schmeilzl, co-founder and managing partner of Graf & Partners: graflegal.com