Negotiations (and other non-legal abilities) in Antitrust Practice
Two days ago I read the obituary of Roger Fisher -Emeritus Professor at Harvard Law School and director of the Harvard Negotiation Project. Fisher was a co-author of one of the best-selling books in the art of negotiating: ”Getting to Yes, negotiating agrement without giving in“. Reading this book was one of the requirements of the Harvard negotiation program to which I devoted 3 intense weeks of my LLM’s winter term.
Skimming again through its pages last night I remembered the paper that I wrote also as part of the requirements for the negotiation program; I chose to do it about the specific features of the negotiations that take place in the field of antitrust (as is the case with other competition lawyers my mindset is programmed to think mainly about one subject…). I would post it here, but my only digital copy of that paper was lost under very peculiar circumstances that would merit an ad hoc post.
Anyway, let’s cut to the chase:
Antitrust practice nowadays requires inmense negotiation skills. In many cases, and after the law plays its role, the final outcome is determined pursuant to a negotiation. Moreover, quite often practitioners and authorities don’t limit themselves to the application or establishment of liability principles, but rather negotiate in the shadow of the principles that regulators and courts may be expected to apply (for some material about negotiating” in the shadow of the law”, click here or here). In other words, very often a negotiation is what determines the success or failure of the project or case at issue.
In spite of the increasing prominence of negotiated solutions in antitrust enforcement (think of cartel settlements, settlements in actions for damages, commitment decisions in abuse of dominance cases, or the design of remedies, among others), awarenesss about the importance of negotiation skills in our profession is still scarce. To be sure, this attention deficit is not exclusive to negotiation abilities; the same happens with other non-legal abilities that in practice are as important -or much more- than a thorough knowledge of the law (notably writing).
Law firms often attempt to resolve the issue through one day talks and other brief and not-so-serious means, but I’m not sure of whether that’s enough. Universities and postgraduate centers would be providing a great service should they focus on these extra-legal abilities.
Don’t get me wrong. I don’t think that doing a course/seminar on negotiation or on many other skills is going to radically change anyone’s life. Negotiation skills (like salsa dancing, basketball playing, maths, and almost anything) are to some extent natural abilities. In fact, the best negotiators I’ve ever seen in action act by instinct or experience and would probably laugh at the idea of “studying” about it. Moreover, in a field of repeated interactions like ours, building the necessary trust from your counterparts (authorities or competitors) takes time. In spite of it all, it is a fact that most skills are perfected upon reflection and training.
In order to contribute to filling this void, Nicolas is devising (and trying to sell) an executive training program for lawyers in order to deal precisely with all these non strictly legal skills.
Any suggestions you may have about it would be most welcome!