Tag Archives: escalation

When negotiations turn nasty

No escalation path for Mr Clegg if Mr Cameron proves difficult

Oh to be a fly on the wall in the current negotiations between the political parties striving to govern my country. Talk of ideological differences and deal breakers fill the air, triggering flashbacks of negotiations I supported or lead as a lawyer. One place where the similarity ends, is the lack of escalation if a problem arises. When Clegg and Cameron are sitting round the table, if they get stuck or fall out, there are no senior figures above them to dispense answers, wisdom or discipline to get things moving.

This got me thinking about some of softer skills that lawyers can usefully deploy on projects. Too often lawyers are bought and sold on the basis of their technical skill set or experience, and while there can be no doubt this is critical to their effectiveness on the job, it is not the whole picture, and never is this more evident when the going gets tough.

When problems raise their heads, I’ve seen many different responses. Some retreat into the comfort of their technical expertise “well, it’s not an IP issue, so I’ll let the corporate lawyers sort it out” or “it’s not so much a legal issue as a commercial one, it’s for the client to resolve”. The flip side is of course the in-house lawyer who retreats from the detail “this is too technical for me, I’m a generalist and this needs specialist advice”. There are of course, two sides to the coin, and problems also offer an opportunity for the better lawyers to shine. Creative problem solving, especially when it’s not within the lawyer’s area of domain expertise always wins points, and in many cases it doesn’t need any technical expertise, just some lateral thinking. Bright, articulate lawyers can be just as capable of this as their commercial, operational or financial counterparts and similarly the newly qualified lawyer can provide this type of break-through thinking just like the seasoned partner.

Another area where lawyers can shine is in managing escalations. Knowing how to escalate, who to escalate to, and having the communication channels to so (both informally and formally) is a critical skill, the importance of which is often under-estimated. The ways in which external counsel and in-house lawyers can do this may differ, but the skill is common. I have seen deals quickly put back on track by a quiet word in the ear of a very senior executive, and I have also seen all hell let loose when a relatively minor project issue ends up on the desk of the CEO (although personal reports from the project manager to the CEO of a listed company certainly focus the mind, some of the other consequences are certainly not career-enhancing!).

The list of non-core skills to consider on a deal is lengthy (and I definitely want to keep some of them back for future posts!), but at the start of a deal, look at the assorted legal firepower at your disposal, and try to assess what skills and capabilities you have at your disposal, aside from the pure legal knowledge. Get the right blend and deals can be a whole lot smoother, and maybe (just maybe) the next client to pick up the phone will be the future Prime Minister.