For the last half century lawyers were taught, perhaps not explicitly but certainly as the prevailing culture, that a conflict admits only two possible stances: yield or attack. Attacking was what «good lawyers» did; if you wanted to be seen as a successful lawyer, you had to attack and be aggressive. An entire generation was trained on phrases like «the best defence is a good offence», «strike before they see it coming», «better to ask forgiveness than permission». Fortunately, things are changing.
Psychology has spent more than seventy years describing a third way; the way the law needs, and the one I believe should be a compulsory part of training our future lawyers.
Assertiveness.
I grew up professionally, as I think my whole generation of lawyers did, with a very specific image (probably a stereotype) of what it meant to «defend» someone. The nineties and the two thousands gave us the lawyer with folded arms, tight tie, defiant stare, boardroom overlooking a skyscraper: someone who won by imposing himself. The profession, and perhaps also the society of the nineties, offered us a choice between two fixed roles: the lawyer who attacked, or the polite one, the one who treated everybody well but was «a bit soft» (and of course a bad lawyer).
The problem was not anyone’s character. It was that nobody explained to that polite lawyer, who was confusing two different things, that being polite and being assertive are not the same. Just as being inconsiderate and aggressive is not the same as being assertive either.
Whoever confused politeness with assertiveness lost ground without noticing, and a good deal faster than whoever confused aggression with assertiveness. That is why being inconsiderate and aggressive came to be seen as the better of the two available options: better to win by crushing than to lose with style. A quarter of a century later, we are still offering clients those same two options.
Now let me put on my «psychology graduate hat». The good news is that psychology resolved this false dilemma decades ago, even if the law has been slow to notice.
What psychology means by assertiveness
The concept is not new, and it is not a recent piece of «self-help or personal growth». In 1949, Andrew Salter proposed in Conditioned Reflex Therapy that certain people needed to learn to express openly what they thought and felt, instead of inhibiting it. A few years later Joseph Wolpe brought the idea into behaviour therapy and, in Psychotherapy by Reciprocal Inhibition (1958), defined assertive behaviour as the appropriate expression of any emotion other than anxiety towards another person. Put in plain language, it is still the best definition I know:
To assert yourself without needing to sink the other person.
In 1970, Robert Alberti and Michael Emmons published the first book on the subject aimed at a general readership, starting from an equally simple idea: we all have the right to defend our interests, and that right is not at odds with respecting the other side’s.
Since then, psychology has described three ways of being in a conflict, not two:
The passive avoids expressing what one needs for fear of confrontation, and ends up giving away ground it should not have given.
The aggressive defends its own position by invading the other side’s. It may win the argument by imposition and lose the relationship. It may win the lawsuit and destroy the value that was there to be shared.
The assertive is the one we were rarely taught: expressing what you need clearly and firmly, without attacking, and without ceasing to listen to what the other side needs. It is not a lukewarm midpoint between the other two, and this matters: it is a different skill, and it demands more precision than either of them.
Why the law needs this more than any other profession
Most of the legal conflicts I work on are not, at bottom, only problems of legal argument. They are problems between people who will have to go on dealing with each other after the matter closes. Business partners who, win or lose the litigation, will have to decide whether they remain partners. A family that, however the estate is settled, will go on being a family. A company that, however the deal closes, will have to coexist with the other side in the same market.
The aggressive lawyer treats these matters as a war to be won, and often wins it by burning exactly what the client wanted to preserve. The passive lawyer, by contrast, avoids confrontation and misjudges the pace of concessions, and the client ends up giving away more than was necessary purely to avoid the discomfort of holding a position. Neither is really defending the client. One is defending his professional ego; the other, his own comfort.
Assertive lawyering starts from a different question: what are my client’s real interests, beyond the position he has taken out of anger or fear? And once identified, how do I defend them firmly without needing to destroy what sits on the other side of the table? It is, almost word for word, the principle Roger Fisher and William Ury set out in Getting to Yes when they founded interest-based negotiation at Harvard: separate the people from the problem, and negotiate over what genuinely matters, not over the positions adopted to defend it.
There is nothing soft about this
Being assertive does not mean conceding elegantly. It means holding a position with the same firmness as a litigator, but without needing to humiliate, to drag out the process, or to turn every communication into an episode of war. In fact, it is better sustained from strength than from weakness:
You can only negotiate calmly when you know, with certainty, that you are ready to litigate if you have to.
Assertiveness does not replace the capacity to defend a case in court; it completes it.
And there are occasions when what is called for is simply to litigate. When the other side will not negotiate, when a ruling is needed to settle a point, when a limitation period is closing in, or when what is on offer is worse than the worst reasonable outcome at trial. In those cases, insisting on a settlement is not assertiveness, it is naivety.
The difference is that here toughness is a decision, not a reflex. Someone who chooses to litigate knowing there were other options on the table is defending his client; someone who only knows how to litigate is not choosing anything.
Spain, moreover, has just taken a legislative step in this same direction. Since Organic Law 1/2025 came into force, it is compulsory to attempt an appropriate dispute resolution method (mediation, private conciliation, independent expert opinion, and so on) before going to court in most civil and commercial matters. In practice, the legislator is asking the Spanish legal profession to abandon the purely adversarial reflex as its first response. The law no longer allows purely aggressive lawyering as the default option. And the passive kind was never a real option for anyone.
The spirit of Estudio Jurídico Alta Mediación
This is what I mean when I talk about assertive lawyering, and it is the spirit in which I founded Estudio Jurídico Alta Mediación. Not a firm that avoids conflict, nor one that feeds it to bill more hours. A firm that combines the experience and the firmness needed to sustain a defence to the end (25 years in complex transactions, international disputes and difficult negotiating tables bear that out) with training in psychology that makes it possible to understand what is really behind a conflict, and what will actually resolve it rather than merely calm it.
The outcome will not always be an agreement. But the question we ask ourselves before every decision is not «how do we win this?», but «how do we defend what matters to our client without destroying along the way what also matters to him?». That question is what separates assertive lawyering from the other two, and it is the one that will guide this firm in the years ahead.
If you recognise yourself in a corporate, family or asset-related conflict that needs to be approached this way, request a first consultation. It is confidential and without obligation.