Book Review: NEGOTIATION Things Corporate Counsel Need to Know but Were Not Taught by Michael Leathes (Wolters Kluwer 2018)

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Michael Leathes is internationally recognized as former corporate counsel in large companies but – first of all – he is perceived and praised today as a prime international authority in the realm of mediation and negotiation. Locally in Warsaw, Michael Leathes is also known as one of the founding fathers of mediation in Poland, started in May 2001 in a form of international business mediation workshop organized by the Warsaw University and the Polish Arbitration Association. Michael then represented the International Mediation Institute in the Hague, he had chaired for many years. About 2014 and 2015 Michael and the IMI conceived an idea of a series of 28 interactive across the globe conferences  under a broad theme: Shaping the future of dispute resolution & improving access to justice, known under a short name  as Global Pound Conferences (“GPC”). There had been 28 GPC events held in 2016 and 2017, and their final conclusions are contained in the final report of May 2018: Global Data Trends and Regional Differences. 

The GPC Final Report has identified four key global themes:

1.    Efficiency is the key priority of Parties’ in choice of dispute resolution processes.

2.    Parties expect greater collaboration from Advisors in dispute resolution.

3.    Global interest in the use of pre-dispute protocols and mixed-mode dispute resolution (combining adjudicative and non-adjudicative processes).

4.    In-house counsel are the agents to facilitate organizational change. External lawyers are the primary obstacles top change. (emh. added)

Now, having in mind a special responsibility and a catalyst of change role played in corporations by in-house lawyers, Michael Leathes takes a  closer look at the position, skills, duties and expectations that apply to corporate counsel of the XXI century within the process of negotiation as used in the resolution of corporate disputes and in making business deals. 

The Author modestly proclaims in the preface that “This book is not a user guide to negotiation. (…) Rather, it aims to inspire negotiation ideas and concepts from the standpoint of a lawyer employed by a company or other organization.”

I respectfully  disagree, the book goes far beyond inspiration of negotiation and in my opinion it constitutes a rich source of organized knowledge and practical user guidelines concerning negotiation as applied today by companies and their in-house counsel. A such, it is a precious educational tool and a practical negotiation conduct kit.

The book contents: (1) Expectations, (2) Preparation, (3) Neuroscience, (4) Culture , (5) Leverage, (6) Communicating, (7) Process, (8) Disputes, (9) Ethics, (10) Techniques, (i) Tomorrow, (ii) End Notes, (iii) Bibliography, and

–       Appendix 1   IMI Olè! Case Analysis and Evaluation Tool

–       Appendix 2   CPR Corporate Early Case Assessment Toolkit

–       Appendix 3   Article: Dealing with ‘Selective Perception’ and Bad-Faith

Allegations in Commercial Settlement Discussions

–       Appendix 4  Article: Culture and its Importance in Mediation

–       Appendix 5  Singapore Arb-Med-Arb Clause and Protocol

–       Appendix 6  Mediation Suitability Plan

–       Appendix 7  Sample Roleplay.

The book and its main points  is ably summarized by the Author in the Preface:

1.    Corporate and other internal counsel should not confine themselves to docugotiation and litigotiation   – negotiating terms in agreements and settlements. Those who diversify as commercial negotiators outside the legal frame become true general counsel, empowered to lead, innovate, inspire and increase their value.

2.    Cross-cultural negotiations would lead to more effective outcomes if negotiators take more time to listen and truly understand the other party. Even though most people are not entirely stereotypical, understanding cultural framework is essential.

3.    Prepare better and  faster by using openly available e-tools. Preparation is key, and the preparer is at the center of negotiations.

4.    The dynamics of neuroscience may make our your eyes glaze over, but understanding the basics of brain science improves negotiation.

5.    Using a neutral facilitator to help the parties forge a more effective deal is greatly under-used opportunity . By having a trusted impartial person take charge of the process frees everyone up to negotiate better. It should not be confined to dispute settlement.

6.    Legal education needs to include negotiation skills. Negotiation is a hard, not soft, set of skills and can be assessed. Accreditation should be offered to those who pass negotiation skill assessments.

7.    It is time for an international initiative, backed by top educators, businesses, professional service firms and professional bodies to set high-level global negotiation knowledge and skills standards, as well as an international code of negotiation ethics. An international negotiation institute would not provide training or other services but to promote and encourage more and better education on negotiation in all main languages and cultures, treat negotiation as a hard skill, inspire more people to take negotiation courses and improve the quality and effectiveness of negotiation outcomes.

Amen.