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The Role of Negotiation

Home > French Business Law | Updated 2014-11-17 | Published 2010-12-30

At Picovschi Law Firm, we have accumulated and developed extensive transactional knowledge and experience. We assist our clients throughout France and overseas keeping in mind that litigation is not always the only solution. Most of the time, negotiation is the best and most practical option for our clients.

The role of negotiation, conciliation, and mediation may assume that a sensible and judicious lawyer may resolve even the most intractable and obstinate of disputes.

Often times, disputes are negotiated to an end which facilitates and accelerates the crisis.

The art of negotiation requires the deployment of several key characteristics: the lawyer must be an analyst and a psychologist, an advisor and excellent jurist, a confidant and fine strategist. He must show strength of conviction and conciliation and master the art of secrecy.

The lawyer must also assess whether to initiate negotiations.

The capacity and experience of the analysis of human relationships and psychological tensions underlying the conflict are essential and often decisive.

Our firm must, for instance, know each respective case, meaning that the attorney is able to measure the significance of the ties, whether emotional or sentimental, between the parties which form the crux of the conflict.

Love and hatred are often the engine of violence and make rationality exponentially more difficult and complex.

Nevertheless, these opposing forces are not solely confined to familial and personal disputes.

Tensions between commercial competitors, employer and employee, and between employees of a company, may originate from something other than economic factors. Jealousy, reports from outside the economic link or work, and ties of passion all contribute greatly to conflict within the workplace.

Under these assumptions, the lawyer must assess the nature and power of the forces fueling the conflict, judge the possibility of defusing them, and, if deemed appropriate, make every effort to overcome the prevalent sensitivities, grudges, and passions.

A legal analysis of the case, which is necessary in order to evaluate whether to negotiate, is supplemented by the significant experience and wisdom of the lawyer.

The attorney, in initiating negotiations, seeks to achieve a delicate balance in his or her choice of a power relationship, favorable to his client, and the proposal for an objective solution. The lawyer acting as a strategist is the only mean to achieving this equilibrium.

The lawyer's duty is to put the interests of his client in a favorable balance of power against the opponent.

Through specific and thorough research and consideration, a comprehensive reading of the material presented here should help inform the client on the limits and the foundation of his rights as well as the maximum claim that can be reasonably made within the framework of negotiation and mediation.

It is precisely this maximalist approach but legally established rule of law that will formulate an initial settlement proposal.

It may also be the basis of an assignment before a Tribunal; it appears useful to give meaning to the negotiations or to force the opinions of the opponent to perform a parallel lawsuit.
However, it must be imbued with certain objectivity and impartiality.

A disproportionate proposal for compromise would have no credibility without merit, and carries with it the potential to break the fragile thread of discourse.

In legal science, and its ability to exploit the variables, the lawyer finds the objectivity necessary to identify and adequately support the demands of the most favorable entity or individual.

Once the initial proposal has been established, the lawyer must direct and control the proceedings and exercise their role of conviction and conciliation.

It must be understood that the original position defining the negotiations, if based on objective, fair, and legally sound principles, is critical to the orderly conduct of negotiations.

Undeniably, the lawyer must, throughout the entirety of the discussions, maintain his pugnacity and strength of conviction.

The attorney’s role as an intermediary, a conciliator, must simultaneously help diffuse and resolve the debate.

The lawyer acting as a third party outside the prevailing dissensions between the parties may thus help    pacify the situation.

In many cases, if the tone of his speech is firm, the issue may be quickly resolved as the lawyer becomes a catalyst for a favorable, rapid, and agreeable outcome.

The lawyer must then exercise his role as confidant and secret keeper.

The secrecy surrounding the occupation is considered with utmost seriousness; therefore the client may discuss freely with his counsel the terms of the dispute and unload the often overwhelming burden of emotional and psychological weight.

The confidentiality agreement that prohibits the disclosure of discussions and correspondence between counsel and client may also constitute an essential interest in practice, since it allows freedom of discussion and guarantees that neither party may operate against the other proposals that have been exchanged.

Ultimately, negotiation can be a particularly effective means to reaching a timely resolution of conflict, specifically when directed to a board broke with its practice.

Personality and professional competence of counsel are decisive at every step along the way.

This article is available online for public information purposes. It is updated regularly, as needed. Due to the constant evolution of the laws and the legal system, we cannot guarantee that the information in this article is still applicable. We invite you to contact us with any legal questions or concerns you have regarding this topic at +33 1 56 79 11 00. In no way can this firm be held liable for articles that contain inaccuracies or are now out of date.

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