Although the attorneys at Shepherd, Finkelman, Miller & Shah, LLP (SFMS) are strong believers in the use of alternative dispute resolution (ADR) procedures, including mediation, in appropriate circumstances, they also believe that, in many cases, there is no good substitute for direct negotiation, both within and outside the confines of traditional ADR mechanisms. Simply put, the ability to negotiate directly with opposing counsel and parties on a face-to-face or other direct basis is a critical skill that is often neglected in the current practice of law, especially by practitioners who rely upon mediators and neutrals as the exclusive or preferred means to achieve dispute resolution and/or the so-called “art of the deal” in the corporate and business setting.
The attorneys at SFMS are regularly complimented for their direct negotiations skills by clients, courts and third-party neutrals alike. Successful direct negotiation requires a careful and balanced blending of advocacy and interpersonal skills with an emphasis on candor and the careful use of empathic positioning techniques. Simply put, if your adversary does not trust you and/or if you do not understand your adversary, the opportunity to maximize the outcome for a client in any direct negotiations is substantially diminished (if not nonexistent).
In approaching and conducting direct negotiations, SFMS professionals focus particularly on client goals, potential trades with the other side(s) and alternative proposals that may be applicable to the situation, the relationship between the parties and the extent to which that relationship will continue in the future following the negotiation (or if the parties will be negotiating regarding a different matter in the future), the outcome expected by the client, the relative bargaining power of the parties, including the consequences of “winning,” “losing” or failing to reach agreement for each party and, perhaps most importantly, the availability of creative and “win-win” solutions to bridge gaps between the parties.
The attorneys and other professionals at SFMS particularly embrace the negotiating principles and approaches espoused in Fisher & Ury’s seminal work, Getting to Yes (1981), and the focus in that important work on creating “win-win” situations in various areas of direct negotiation. SFMS’s attorneys have honed their direct negotiation skills both in the classroom through substantial training exercises and in real-world negotiations in which they have collectively spent thousands of hours in direct negotiation settings, including, but not limited to, collective bargaining negotiations, commercial contracts and similar arrangements, intellectual property licensing and similar arrangements (including agreements in the software field), merger and acquisition deal-making discussions, and settlement negotiations in various kinds of complex litigation and other disputes.