Claudia Winkler, Negotiation Trainer and the Director of the IBA-VIAC CDRC Vienna Mediation and Negotiation Competition, discusses legal education, the future of ADR and the importance of negotiation skills in transforming the culture of dispute resolution.
What is your current role in dispute resolution?
As a negotiation trainer, mainly being called for in-house trainings in law firms, I see myself in the role of a provider. For my client-communication coaching I also take the role of an advisor and coach to lawyers.
What made you specialise in dispute resolution?
I was initially going to habilitate in European Union Law when my LLM at Harvard Law School gave me the chance to join the Harvard Negotiation Program. Realising the leverage that negotiation skills can have on every aspect of a lawyer’s work I completely rearranged my career plans to focus on teaching negotiation exclusively as an independent trainer.
How do negotiation skills fit into the continuum of alternative dispute resolution (ADR) processes?
Many people think of dispute resolution methods as being a continuum from adversarial to consensual: litigation – arbitration – mediation – negotiation. In reality, negotiation skills are applicable equally much to all dispute resolution methods. We use them when trying to reach a settlement ahead of litigation (and successfully so in up to 97% of cases), we use them while trying to persuade the tribunal in an arbitration, and of course mediation is nothing but facilitated negotiation. Negotiation skills are an everyday tool in every lawyer’s toolbox and have now become a skill too important to leave its mastery up to chance.
Why is it so important for law practice to incorporate negotiation skills?
The way we practice law, make deals and solve disputes is fundamentally changing with the way the pace and complexity of business and life is evolving. The world population has doubled in the last 50 years, changing the way we (need to) do business fundamentally. Businesses require flexible, creative, value preserving and fast solutions to the international challenges they are facing. Companies will soon no longer be willing to pay for input and time worked on a case but only for outcome and time saved in resolving a matter. Negotiation skills with all their elements such as the search for underlying interests, increasing the value for both sides, generating creative options and looking to trade values are at the very core of the future of law practice.
What importance will ADR methods have for the global economy?
Litigation spending is vast, as is commonly known. I recently heard that up to one-third of the profit of Fortune 500 companies goes into litigation costs. But the impact on the economy is way beyond that. Studies have found that the loss companies are incurring due to their lack of negotiation skills could be about 9 million GBP per hour across UK businesses. 9 million pounds an hour down the drain.
On the other side the estimate goes, that better negotiation skills could increase annual turnover by a total of 17 billion GBP in the UK alone. Other meta studies have shown that negotiators miss to discover joint interests 50% of the time. The economic opportunities in increasing our joint negotiation intelligence are invaluable and with businesses becoming more and more squeezed to perform, this is an opportunity that I am sure many businesses will soon want and have to tap into.
Why is it so important for lawyers nowadays to master negotiation skills?
When I was in law school more than 10 years ago one of my professors welcomed the whole new batch by saying “the last thing we need is more average lawyers”. This is becoming truer with every single day. Top notch legal skills are not what separates you any more as a lawyer, they are a sheer prerequisite. Because legal practice will change even more.
Artificial intelligence will play a huge role in transforming legal work in the next 5-10 years. Predictions of the number of lawyers that will be ‘automated’ range between 5% up to 40%. And while many may not believe any of these numbers right now (because who could imagine everyone would have a smartphone 10 years after we had all had just started running around with our big cellphones?) one thing is clear: The kind of lawyers that will set themselves above all this will be the ones who can frame the best arguments, find creative solutions, are skilled at working with clients and partners and especially, will be skilled in negotiating deals and solving conflicts.
How do you think the dispute resolution processes are likely to change in the future?
I believe consensual dispute resolution (CDR) will be the means of the future, processes that empower parties to make their own agreements in consent, such as mediation and negotiation. Arbitration to me is no longer a part of the original term of ADR. It has become a litigation-like vehicle that demands similar time and monetary expenses litigation would and often does not give the flexible and individualised agreements that could satisfy the party’s true needs.
However, especially in continental Europe, there is a long way to go in achieving this shift. The popularity of mediation and negotiation is picking up at a very slow pace. In Vienna, we do our share by hosting the IBA-VIAC CDRC – the Consensual Dispute Resolution Competition, a mediation and negotiation competition based on the Vis Arbitration Case. We hope that by gaining exposure to the benefits and effects of mediation and negotiation, the next generation of dispute resolvers will naturally chose these methods as a part of their toolbox.
What role can education in negotiation play in triggering a change in the culture and practice of dispute resolution?
Training as many people in interest-based negotiation as we can, can indeed play a significant role in how people will resolve disputes. Current paradigms in dispute resolution can only be overhauled by introducing new paradigms. Interest-based negotiation training shows that winning doesn’t mean getting more than the other side but means getting more of your own interests satisfied.
It shows how value is built by analysing each side’s underlying interests and how working together and creating individually crafted solutions will often make both sides better off than an imposed decision from a neutral third party. Once these paradigms get established and lawyers can see themselves as problem solvers and deal makers this should indeed trigger an important shift in the culture and practice of dispute resolution.
What steps can be taken to further increase the spread, use and education in negotiation skills?
Despite the crucial role negotiation skills play in getting lawyers and business people the results they need to obtain, they are hardly incorporated in any formal education. Increased awareness needs to be brought to the fact that negotiation is indeed a hard skill, a skill that can be taught and assessed, as recently pointed out by Michael Leathes in his new book “Negotiation – Things Corporate Counsel Need to Know but Were Not Taught”.
To achieve this, a small group, spearheaded by Leathes, is currently considering the establishment of an international institute that should help to increase the standards, trust, value and efficiency of negotiation processes worldwide by establishing a canon of good practices in negotiation. These would include high standards of training and certification, a code of negotiation ethics and more tools, standards and resources that help negotiation skills become a respected and valued skill that can be measured. This will allow people adhere to these practices to be empowered, respected and trusted to make deals more effectively.
Being Viennese, I believe that “a ball is only a ball if people know how to dance”. The same is true for negotiation skills – the more people are trained in them the more trustworthy, efficient and value creating our negotiations can be.
Interviewed by Natasha Mellersh.
Claudia Winkler is a Negotiation Trainer specialising in training lawyers in the art and science of negotiating – with the other side and for more satisfaction with their own clients. Her professional experience reaches from law to government, non-for profit, start-up, university and international institutions. She has worked as the ADR development coordinator with the New York International Arbitration Center (NYIAC) during her time as a Fulbright scholar and is a licensed Mediator in New York.