By Lauren L. Lopez
Layout by: Lou Margaret S. Nebit
“By failing to prepare, you are preparing to fail.”
-Benjamin Franklin
Negotiation is an integral part of the lives of many professionals, especially lawyers whose primary responsibility is to solve their clients’ problems. In many ways, the legal profession exists because conflicts exist. Yet the skill of a lawyer is often measured not by how effectively they litigate disputes, but by how successfully they resolve them before they ever reach a courtroom. Hence, lawyers must, at the very least, acquire two (2) of the most valuable skills in legal practice – mastering the art of negotiation and knowing the proper problem-solving techniques. Lawyers must be decent both as negotiators and as problem solvers.
According to Jay Foldberg & Dwight Golann in Lawyer Negotiation (2011), negotiation is a process of communication used to obtain something we want when another person has control over whether or how we can get it. If individuals could achieve all their goals independently, there would be no need for negotiation. However, because human relationships are built on interdependence, negotiation remains a pervasive and essential skill. For lawyers, negotiation offers an opportunity to shape outcomes in a way that litigation often cannot. Once the case reaches the court, the outcome ultimately rests in the hands of the judicial authority. This can be burdensome to all the parties, as this can cause emotional stress and financial dilemmas on the part of the client.
The ability to negotiate is a skill that can be learned by lawyers. Through identifying strengths and weaknesses, learning the process, and mastering the tools, lawyers can negotiate more effectively in all parts of their lives. As Reynolds aptly noted, negotiation is much like a muscle. If you never flex or use that muscle, it is going to be supremely painful and a shock to the system, as you won’t be at all prepared.
Legal education itself reflects the importance of negotiation. In law school, students have a subject called Alternative Dispute Resolution (ADR), where negotiation serves as the first step in the spectrum of dispute resolution mechanisms. ADR is intended to circumvent litigation by resolving disputes before reaching and clogging the court’s dockets, which is a dilemma in our judicial system.
To better understand how future lawyers perceive this issue, several students of San Beda Alabang School of Law were asked whether ADR alone is sufficient to decongest court dockets. Most of them leaned towards a negative response. While they acknowledged the value of ADR, they emphasized that many legal disputes still require judicial intervention. Criminal cases, for instance, generally cannot be settled through compromise. Lawyers should be able to encourage the parties to enter into a compromise agreement. One respondent mentioned that the determination and appreciation of facts is fatal in ADR, hence a more informal proceeding may keep disputes from reaching the cognizance of courts. These responses back up the fact that lawyers must be able to resolve conflicts beyond the rigid confines of formal litigation. Negotiation remains one of the most effective tools available for achieving this objective.
The benefits of negotiation become even clearer when viewed from the client’s perspective. Larry Teply, a Professor of Law at Creighton University School of Law in Omaha, Nebraska, identified several advantages of negotiated settlements.
First, a negotiated settlement avoids the uncertainties and vagaries of trial and appeal — setting for what is certain over what is far from certain. Second, it reduces the economic cost of trial, including witness fees, additional discovery, time lost by the parties in preparing for and attending trial, and additional legal fees. Third, it minimizes the social and psychological costs of trial — including anxiety and stress of trial, possible embarrassment or adverse publicity, and further damage to the relationship between parties.
Moreover, a negotiated settlement avoids the “winner-take all” nature of most legal remedies and avoids the limited scope of remedies available in court—providing an opportunity to fashion a broader package in the best interest of both parties. Furthermore, it reduces the risk of unfavorable interpretations of the law and prevents the possibility of harmful admissions or finding of fact that could be used against clients in related litigation preclusion.
Indeed, there are enormous benefits for both parties when legal disputes are resolved without court intervention. The amount of time preparing documents, the stress and anxiety that the client has to go through, and the amount of money that the clients shell out can be substantially reduced if the lawyer is trained how to win cases without the need to go to the court. The emotional burden on the client in bringing cases to court sometimes takes decades and can even be passed on to the heirs. It is time that we help the judicial system attain speedy disposition of cases.
The same students interviewed were asked if they have experienced filing cases in court where it took longer than expected to be resolved. Several recounted that delays were frequently attributed to congested court dockets, scheduling difficulties, and the heavy caseloads carried by lawyers, particularly those from the Public Attorney’s Office (PAO). Some respondents also mentioned that many cases referred to Rene A.V Saguisag Legal Aid Center (RAVSLAC) originate from PAO referrals, which supports the fact that there is a great need for affordable legal representation. Others observed that there are instances wherein a student practitioner needs to file a Motion to Reset a hearing due to some school matters. Moreover, one interviewee shared experiencing delays at the prosecutorial level, causing a toll on his mental state. Their experiences demonstrate how negotiation and problem-solving skills can help minimize stress on both parties, reduce costs, and alleviate some of the burdens associated with negotiation.
Negotiations are worthless if neither party is willing to budge
-Dave Waters
Not every legal issue is negotiable. In legal negotiation, not all claims could be a subject of compromise. Parties are precluded from negotiating the terms of certain matters that have been declared by law as “non negotiables.” In the Philippines, Article 2935 of the Civil Code provides that no compromise shall be valid regarding the civil status of persons, the validity of marriage or a legal separation, any ground for legal separation, future support, the jurisdiction of courts, and future legitime. Similarly, Article 222 of the Civil Code states that no suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts toward a compromise have been made, subject to the limitations of Article 2035. As explained in Versosa v. Versosa (G.R. No. L-25609, November 27, 1968), the attempt to compromise is a condition precedent to the filing of the suit. Although negotiation can be done by anyone, the law also declares limited topics that cannot be altered by both parties.
Based on the law students interviewed, they were asked if legal negotiation would be feasible to be taught in law school, and the replies leaned toward an affirmative answer. Some reasoned that it should be taught on a theory level, and for others, they mentioned that it should be taught to provide additional value to law students. Several respondents pointed out that negotiation skills are useful not only in legal practice but also in everyday transactions and professional relationships. One reasoned that it must be taught for improving proper timing, manner, and methods by which to initiate such remedy.
He who has learned to disagree without being disagreeable
Has discovered the most valuable secret of negotiation.
-Chris Voss
References:
1. Jay Folberg & Dwight Gollan, LAWYER NEGOTIATION, 2011
2. Natalie Reynolds, WE HAVE A DEAL, 2016
3. Versosa v. Versosa, G.R. No. L-25609, November 27, 1968
4. Larry L Teply, Legal Negotiation 1992
NOTE TO THE READERS: Volume XIX, Issue 2, penned and published by The Red Chronicles, is a Back Issue for the Publication Year 2025-2026. Note that the article contents thereof align with the events relevant to the previous Academic Year 2025-2026.
