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Which approach do you think is generally more effective for transactional lawyer seeking to

negotiate a contract? What are the qualities a transactional lawyer must possess for tracking a
deal in a problem solving negotiation? What are the advantages and disadvantages of an
adversarial and transactional negotiation? Is one negotiation ethical/professional than the
other? What would you want to be, settlement or transactional lawyer?

Ans. Transactional lawyers counsel individuals and organizations on the legal issues
generated by their business dealings. Many transactional attorneys are drawn to this type
of work because it is generally less adversarial than litigation.

 Exceptional attention to detail, alongside a firm grasp of the big picture and the
context of the deal.
 Great understanding of the unspoken factors in the negotiation.
 Great understanding of each party's principal needs and priorities.
 Lack of excessive emotion, lack of inclination to take things personally.
 A strong memory.
 Great drafting skills and experience with the type of deal being done.
 Trustworthiness, especially earning the trust of the other party to the transaction.
 Keep aside egos; be open to discussing final objectives.
 Building a relationship with the client to resolve a dispute.
 Look into the benefit of both the parties.
 Removing any informational asymmetry that might exist.
 Being calm and composed.

The qualities a transactional lawyer must possess for tracking a deal in a problem
solving negotiation are as follows:
 Don’t Forget the Basics – Basics of law must be absolutely clear as you do not
know what sort of issues may arise.
 Keep Track of the Market/Environment – As these disputes or issues mostly
revolve around the corporate market or are contingent on external factors, it is
important that you are aware of the ongoing of the legal environment outside so
that any help you provide is filtered through appropriately.
 Appreciate Every Deal – Every transaction and every agreement help form the
foundation of a strong practice, hence it is important that the lawyer pay heed to
any and all kinds of deal or issue that come in front of them. It is imperative that
they do not consider a problem small or insignificant as every issue comes with
its own set of novel problems to be solved.
 Pay Attention to Detail – It is often important to slow down and review the work
that you are carrying out to ensure that nothing is forgotten and no detail is left
out of the equation. Haste is not always a good idea and hence going through
everything more than once is an appropriate way to manage things.
 See the Bigger Picture – An attorney should never be upset or put upon by the
quantity of work they have in their hands. No work is too small and hence every
single task must be taken head on. It is important to understand the need to do
the small task as they lead to a bigger and brighter picture.
 Build Relationships – It is important that any lawyer during their tenure of work
makes amicable relationships with the people they either work with or work for.
These could be their colleagues or their clients, both should receive good vibes
and behaviour from you.
 Keep Your Cool – Negotiating or problem solving can be stressful. The parties
involved are going back and forth over various parts of the proposed agreement,
and there’s no guarantee that everyone at the table is experienced with
transactions. In such situations it is important that the lawyer keeps their cool as
they have to act as a moderator and a mediator between the parties and help
solve the problem easily.

Adversarial Negotiations
Advantages
 Not a long term negotiation.
 Ethics have to be maintained.
 Rules are to be followed.

Disadvantages
 Most of the tactics might work through manipulation.
 There is a win-lose situation.
 Generally there is a need to be aggressive.

Transactional Negotiations
Advantages
 Informal to a certain nature.
 Free styling is followed, the discussion is less formal.
 Have a wide area of practice in which there is more scope.
Disadvantages
 Have to constantly ensure amicability between parties.
 Are restricted by stricter rules regarding confidentiality, misrepresentation etc.
 Cumbersome as work contains going through a lot of document and material.

Settlement negotiation can be said to be less ethical than transactional negotiation. Both
the formats require the advocate to ensure confidentiality and appropriate knowledge to
be provided to the client. Both require that the lawyer follow the given rules and
regulations. The only problem with settlement negotiation is that as the parties or their
lawyers are not bound to maintain an amicable situation and it is a win-lose situation, the
parties may always keep trying to best each other. They may try to manipulate or use
different modes of persuasion to get the party on the other side to agree to their terms.
These modes may range from threat, promises to arguments between the parties and also
bargaining for the better option. Transactional negotiation requires that both the parties
ensure the other side is happy and satisfied with the result as well and hence involves the
parties trying harder to be nice eventually becoming a more ethical way of handling.

I would want to be a transactional lawyer mainly because the non-confrontational


method it inculcates and the easy going manner in which the deals are held. Considering
that both involve quite a good amount of knowledge of law and similar amount of work
to be put in it, the workload remains the same, it is only the atmosphere that is different,
albeit better with transactional negotiation.