Julian Hawkhead, the managing partner of Stowe Family Law’s Harrogate office, is an excellent negotiator – and his reputation has spread. Earlier this year Julian was approached by Men’s Health and asked to contribute to a “masterclass in professional negotiation”. His advice later appeared in the magazine, sandwiched between insights from a footballers’ agent and tips from a former FBI spycatcher (which caused some amusement in the office).
I asked Julian to write a post about negotiation for this blog, after it struck me that his advice applies to plenty of real-life situations, not just divorce – and that perhaps readers, lawyers and non-lawyers alike, would find it useful.
The definition of negotiation is “to discuss with the goal of finding terms of agreement” – and that may require compromise on both sides. Have conviction in your cause, but be sufficiently self-aware to acknowledge that there can be another opinion that, in the other party’s mind, may be equally valid.
In my sphere of expertise, which is negotiating divorce settlements that include complex assets, business structures, tax issues, liquidity issues and so on, the commercial issues can be eclipsed by an aggrieved, deeply hurt husband or wife who cannot get past the emotional obstacles to be able to deal with the really important financial issues that have to be sorted out. It is inevitably the emotional issues – the anger, mistrust and distress – that complicate many divorce settlements, whether they involve Premiership football players, ageing rock stars or just the everyday men in the street.
There are plenty of dos and don’ts when it comes to successful negotiation, but here are some pointers.
The key to a successful negotiation is preparation: knowing your own strengths and weaknesses and those of the other party inside out. Know your best and worst case scenarios: where your bottom line is (worst case scenario) and where your top line is (best case scenario and where this leaves your counterpart). What are the key points you want to get across? You need to know as much about the person with whom you are negotiating.
I’ve undertaken negotiations in many cases involving multi-million pound settlements and in those situations, you need to know the circumstances of the case inside and out: the details of the assets, which of the assets are prized by your client and what you suspect the other side would most like to hold on to. I ensure that my client is up-to-date with the case and extremely well-prepared before we go into any meeting, so that they too are aware of all the possible developments and outcomes.
I have no qualms about where I negotiate. As the saying goes, you have to make the best of the terrain you’re given. I sometimes feel that it is better to negotiate in the place where my opposite number will feel most comfortable, because if they are not immediately on the defensive they may be more open to ideas and discussions.
A meeting at the end of the day, when everybody is tired and when time is limited, is never a good time. It is much better to get an early start before your mind and everybody else’s minds gets filled up with other worries and matters.
Be concise. There is no point in waffling because that just irritates. At the same time you’re negotiating because you don’t want to be fighting, so smile and be friendly. Listen to what your opposite number has to say.
My client wants a settlement, not a lawyer who struts like a peacock. I’ve seen ineffectual lawyers whose idea of negotiating is to shout the loudest. What’s the point? However if you really have nothing to lose, you can afford to be bullish.
5. Body Language
Somebody who is always aggressive will not be a successful negotiator, because they will get a reputation for bluffing or for being so intransigent and unpleasant that nobody will negotiate with them.
Remember you are negotiating for a purpose: to get something you want by making the other party feel sufficiently content to agree with you. Coercion is not negotiation.
If you look like a tramp, you’ll get treated like a tramp. If you wear a cardigan, you’ll be treated like a social worker. Dress smartly to impress: my personal preference is for a dark-coloured suit. If you want to be taken seriously, avoid a comedy tie at all costs.
You should, however, dress to suit your environment. If you normally wear jeans to work, don’t pull on a suit to go and ask for a pay rise. You’ll suddenly stand out and put your boss on alert that you are after something, before you have even opened your mouth.
It is almost impossible to predict with accuracy what will happen in a negotiation, so a pre-prepared speech has a limited shelf-life at best. Instead, be alert to what is being said to you and respond accordingly. If you don’t listen and you carry on making your points regardless, the chances are that you’ll fall flat on your face, achieving nothing. Give yourself room in which to manoeuvre.
The only time you should ever go on the attack is when you know that if you take the nuclear option – for me, this is a case proceeding to court – that you are likely to get what you are asking for. In law, the lottery of litigation means you can never be 100 per cent certain of an extreme outcome, so you have to be aware of the risks. Ask yourself: what happens if you don’t get what you’re asking for? What will you do about it?
In contract law, if you reject an offer that is made to you or go back with an alternative offer, it means that the offer originally put before you may no longer be open for acceptance. Do not be quick to reject an offer out of hand unless it is truly derisory. Instead, look at the offer, give it some thought, accentuate the positives and the common ground that you both have and try to narrow down the issues that are outstanding. This way, you may be able to show the other party that actually you’re not very far apart, while making substantial headway with the headline issues.
Stay positive and be prepared to compromise. Try not to focus on negatives. Instead of listing everything that is not agreed, how about concentrating instead on what is agreed? As one famous American divorce mediator was renowned for saying to the warring couples that sat before him: “I’ve heard a lot about what you don’t want but what is there that you do want?”
I have negotiated a £7 million settlement successfully for a client but equally, I’ve seen opponents flounce out of a negotiation because they didn’t get the coffee machine that they wanted or the beloved pet cat. You should never assume that you have fully settled a deal until you have dealt with every detail.
Julian Hawkhead became Managing Partner of the Harrogate office of Stowe Family Law in December 2009. Although Julian has a broad spectrum of expertise in Family Law, he is a Resolution accredited specialist in both Emergency Procedures in Financial & Property Cases and Complex Financial & Property Matters. He is known in particular for specialising in cases involving complex financial arrangements for high net worth clients, often with a corporate or trust element.