Who, What, Where, Why, When, and How?

By

Alain Burrese

During the State of the judiciary address before the American Bar Association in Chicago on January 24, 1982 , former Chief Justice Warren E. Burger stated, “of all the skills needed for the practicing lawyer, skill in negotiation must rank very high.”  Negotiation plays a role in virtually every lawyer’s practice.  We use negotiation skills when trying to settle a case, persuade a judge or jury to our point of view, writing proposals or memorandums for clients use in making offers, among numerous other tasks.  We negotiate constantly, regardless of any training in negotiations or not.

With this in mind, let’s assume the most effective negotiator is one who can maximize his or her client’s return, maintain a positive relationship with the opposition, and still maintain the dignity of the profession.  This does not mean everyone is always going to be happy, or even satisfied.  Therefore, as long as we are abiding by our governing ethical constraints, our loyalties are, first and foremost, with our client.

Attorneys approach negotiations with different moral and philosophical elements regarding the process.  Some approach the negotiation process with principled positions while others may use tactics to gain strategic advantages that some would consider almost clandestine.  Negotiation styles range among attorneys as diversely as the attorneys and their practice areas and the clientele they represent. With such diversity in individual negotiators and styles, it is all the more important to thoroughly prepare for negotiations.

In the “Attorney’s Practice Guide to Negotiations 2^nd Edition” by Donner & Crowe, a simple six step planning strategy is provided as a way to identify concerns that should be addressed before initiating negotiations.  The six steps are simply considering the six basic questions that should be answered in any good story: Who? What? Where? Why? When? and How?  By answering these questions, the concerns relevant to planning for negotiations should be addressed.

Many of us remember these six questions from journalism or literature classes.  In negotiations, asking these questions can help us organize our thoughts.  It is relatively easy to incorporate these considerations into your style or approach to negotiations, and you should find yourself better prepared at the negotiation table after addressing each of these six questions.

“Who” will be involved in the process?  Will it be one negotiator or a team?  Should the client attempt negotiations directly, or should the attorney initiate negotiations on behalf of the client?  Should an associate or a partner initiate negotiations?  Who should be approached on the other side?  Who has authority?

“What” are the goals and objectives for the negotiation?  What do you want to accomplish?  What is possible to accomplish?  What are the alternatives?  What is the BATNA (Best Alternative To a Negotiated Agreement)?

“Where” should the negotiations take place?  In person?  Over the phone?  Through the mail?  Through a lawsuit?  Client’s office?  Attorney’s office?  Over lunch?  On the golf course?

“When” is a question of timing.  This often is dependant on events occurring outside of the negotiation.  It is preferable to negotiate while the passage of time is prejudicing the other side rather than the other way around.

“Why” will be asked over and over during the negotiation, but it is a critical question to consider in the first instance.  The client should know why she prefers a particular course of action and why she believes the opposition will agree or disagree with a particular position or proposal.  “Why” helps identify the underlying interests of the parties involved with the negotiation.  This is probably the most important question to ask not only at the beginning of every negotiation, but also during the entire course of the proceedings.  You always want to know “why” you are doing something, and have an idea of “why” the opposition is taking the position they are standing on.

“How” to pursue the negotiation is dependant upon the answers of the first five questions.  “How” also involves defining a strategy, or strategies for the negotiation.  Once a strategy is defined, the specific tactics used to implement that strategy can be determined. 

The order in which these questions should be answered may vary depending on the specific negotiation and the variables relevant to the issues involved.  However, according to the “Attorney’s Practice Guide to Negotiations, 2^nd Edition,” negotiators should consider these questions in the following order:

Step One: Identifying goals and objectives for both sides (what?).

Step Two: Identifying each side’s underlying interests (why?).

Step Three: Deciding on a preliminary strategy (how?).

Step Four: Identifying who will represent each of the parties (who?).

Step Five: Timing the negotiation (when?).

Step Six: Selecting a medium (where?).

As we saw in the beginning of this column, negotiation skills are important for attorneys.  Regardless of our style, approach, or training, it is important to prepare for each negotiation.  The more one negotiates, the more one will be able to draw on past experiences to help prepare for the next deal or case.  Remembering the six basic questions: Who, What, Where, Why, When, and How can go a long way in helping you plan for negotiations regardless your experience.

Alain Burrese is a mediator and attorney with Bennett Law Office, P.C. in Missoula, MT.  He conducts mediations and settlement conferences as well as speaking and training in negotiation and mediation.  He can be contacted at: www.bennettlawofficepc.com or (406) 543-5803.

This article first appeared in "The Montana Lawyer" May 2006 issue.

Return to the Articles main page.