Category: Negotiating

THE TOOLS YOU HAVE BEEN WAITING FOR

Last blog we asked if you were afraid to negotiate. Hopefully we convinced you that life would be easier as an attorney if you added negotiation to your skills.

So this week, let me give you a few ways of looking at negotiation that might be helpful.

  • Always negotiate from strength. That means you have to do your homework so you have identified what benefit the other party has for negotiating with you.  This doesn’t mean that you walk in and lay all your cards on the table.
  • Evaluate worse loss you can have by not settling.  This frequently gives you some way of shaping expectations with the person whom you are negotiating for as well as setting a boundary for your worse case.
  • Evaluate best deal you can make.  Here is getting everything you want.  Make it reasonable. Don’t set a million dollar threshold when you only have $1,500 in damages.
  • Identify the type of negotiator(s) who might be on the other side (if you can).  Are you expecting a great deal of aggression? passive hostility? or something else?
  • Decide what might be your best strategy with the types of negotiator(s) you will be dealing with.
  • Thoroughly brief your client (or person who you are negotiating for) prior to the actual negotiation session. Make sure the expectations are realistic.  Explain what their “job” is in the negotiation.
  • If possible, have a conversation with the person (people) on the other side prior to the actual negotiation. You don’t need to discuss the actual negotiation but you can find out a lot by touching base about who will attend, anticipated time to spend and such things. This will give a feeling about what kind of people you will be dealing with.
  • Be sure to build up your confidence meter before the actual negotiation.  You want to convey  quiet confidence in your view, but not with threats or bullying.  You want to settle but not give away the farm and that can be conveyed with how you phrase your demands and receive the offers.

SO HERE’S SOME REALLY GOOD TIPS TO GET YOU STARTED.  WE DON’T USUALLY GET EVERYTHING WE WANT IN NEGOTIATION, BUT WE USUALLY GET MORE THAN WE WOULD HAVE, HAD WE NOT NEGOTIATED. AND IT’S  A WHOLE LOT LESS STRESS!

ARE YOU AFRAID TO NEGOTIATE?

DID YOU COME OUT OF LAW SCHOOL DETERMINED TO GET RESULTS AND TO WIN AT ALL COSTS?

 

WERE YOU WILLING TO GET THOSE RESULTS EVEN IF IT REQUIRED INTIMIDATION, BULLYING AND THREATS?

DID YOU THINK THIS WAS THE WAY LAWYERS WERE SUPPOSED TO ACT?

AT SOME POINT DID YOU JUST GET DISGUSTED WITH YOURSELF?

This is where I find many lawyers ending up today in my coaching office.  As attorneys we had to fight to get into law school, compete with others to get good grades and on law review, and finally fight to pass the Bar.

Then we end up fighting to get a job and pay our ridiculous student loans back.  We finally end up at our desk one day fighting to find an error that our “adversary” overlooked and that we can ram down his/her throat.  This is not a nice way to live and grow in our quest to help people in the legal system.

Many lawyers are actually afraid to learn and use negotiation techniques. They are afraid they will look:

  • weak
  • not effective
  • scared
  • willing to settle for a small amount
  • lose their perceived superior position
  • not aggressive
  • not being a good adversary

These fears are causing attorneys to turn to alcohol, drugs, and all sorts of other techniques to self medicate themselves out of their awareness of what they are doing to themselves. Also  they need to convince themselves they are not lonely and isolated in being angry, aggressive and pig-headed.

BUT THERE IS A SOLUTION!

If lawyers begin to perceive adversaries differently, a paradox shift can happen.  Lawyer can:

  • begin to see the other side as partners in solutions.
  • to acknowledge that the adversary is a human being with all the complexity that humans have to deal with.
  • that a win-win result may be the best solution for your client.
  • that employing negotiations skills when appropriate is stress reducing.
  • that a skilled negotiator is made and not born.
  • that learning negotiation techniques broader an attorneys ability to serve each situation uniquely.

NOW THAT I’VE CONVINCED YOU TO LEARN A FEW NEW NEGOTIATION TECHNIQUES, STAY TUNED FOR NEXT WEEK’S BLOG!

WHAT WILL YOU NEGOTIATE TODAY?

Talk and preparation only go so far.  Doing is so much more important.  So on this great Memorial Day, I am asking you to take all of your negotiation insights to the next level.  Decide on thing you are going to talk to someone about.  It might be your spouse or your children or you boss or your staff.  There has to be at least one thing that you would like to get or change.  It doesn’t have to be a large quest, just a practice negotiation.

Let’s say you want to ask your spouse to give more quality time to your relationship.  Scarey! You might find out that your spouse doesn’t want to do this or that your spouse has been thinking the same thing.  You will never know until you talk about it.  So, putting the techniques that you have learned about to work, first decide what you want the outcome to be.  What exactly do you mean by quality time?  How much is there now?  Would you take anything else besides more time to satisfy you?  Remember to find out your BATNA.  Best Alternative To A Negotiated Agreement.  In other words what is your plan “B” if you can’t get what you want from this negotiation?

Next you need a good quiet time to have this conversation.  Plan how you will start.  Put judgment and ego aside.  Let the person know you care about him/her .  (In a professional situation, this would be shown as  respect). You might start with an open ended statement like” I’ve been thinking that it might be nice to have more quality time together?”  Wait for the answer.  Don’t say anything more until you get a response, even if it is only a grunt.

This technique works very well in the workplace as well.  If you decide to confront an employee about his/her work, you might start out with “I’ve noticed that your work hasn’t been up to your usual high standard lately.  I’ve noticed a lot of mistakes”.  Then wait for a response.  You might be surprised what you find out.   Continue to negotiate with any new information you get.

These two examples show that most of the time when you are first starting to negotiate, you do need more information before you can finalize a negotiation.  But what about the negotiation which has been ongoing and you are at the final stages?  Here is the time your BATNA really comes into play.  You will actually negotiate from that premise.  You will continue to explore alternatives and see what is the best deal you can strike but that can only go on so long before you decide to stop the negotiation and go to marriage counseling,  go to trial, start looking for another job, decide to wait another year to ask for a raise, or whatever your BATNA says.

You now have more tools to do better negotiation but they are useless unless you begin to bring them into your life on a regular basis. So, get out there TODAY and come up with one way you will practice negotiation.  Let me know what you negotiated and how it turned out.

INTERESTING INSIGHTS INTO NEGOITATING

While preparing to facilitate the ABA seminar on Negotiation, I came across some interesting information that I thought might be useful to my readers.

SUPPLEMENTAL MATERIALS TO STYLES OF NEGOTIATION
By Eleanor Southers
Included is a bit more information that will prove helpful in continuing to analyze your and others style of negotiation. It should also make you aware of how you can use your strengths in negotiation to come out with even greater results.

THE DIFFERENCE BETWEEN DISTRIBUTIVE AND MUTUAL GAIN BARGAINING
For this exercise, it is important for you use two types of bargaining styles.  One is called Distributive Bargaining as described by Brad Spangler in his June 2003 blog  and approaches negotiation on a win-lose basis. One party always loses. The Individualistic and the Competitive Style Negotiator use this type of bargaining.

The other type of bargaining is the Mutual Gain Bargainer. That person sees the negotiation as a mutual problem-solving exercise. This also includes open communication, brainstorming, trust and mutual respect. The purpose is to fulfill the interests of both of the parties. The Cooperative Negotiator uses this type of bargaining behavior.

This is not to say that negotiators use only one type of bargaining throughout a discussion but to recognize that the style of the person on the opposing side is going to be slanted towards one or the other bargaining type can be empowering.

Also you should be aware that some experienced negotiators will begin the talks using a Cooperative/Mutual Gain Bargaining style until the “pie” is expanded to its ultimate size. Then how to cut the pieces up among the parties will turn the negotiator into a Competitive/Distributive Bargainer.

Although styles of negotiation has been analyzed by many,  including Harvard Medical School and MIT and been given different titles, much of the above is taken from Cengage.  You can take a test to find out more about this particular way of naming and identifying  styles at www.cengage.com.

HOW TO IDENTIFY AND HANDLE DIFFICULT STYLES OF NEGOTIATORS

THE SUPER AGGRESSIVE AND HOSTILE NEGOTIATOR:
This, of course, is your extreme Individualistic or Competitive Style of negotiator. This is the kind of person who never lets you get a word in and usually comes into the meeting saying they don’t expect the case to settle.
They make their stand and do not waive from it no matter how long or hard the others work to provide reasoning. One often wonders why this type of person would even agree to negotiate but there are all kinds of reasons, including that the Court or the boss told him or her to.

If, after pulling out all your bag of tricks, you can get no further than a first demand and offer, then giving up is usually the only alternative. This is the time that you bring forth your BATNA which you have previously prepared. You might want to share that with the hostile party or you might just want to keep it to yourself.

There is one or two more tactics that you might explore before you walk out the door. Do you think someone else could reason with this person? If so, send them in. You might cut the negotiation short and ask for another meeting, setting a date on the spot. This will give you time to regroup and maybe get to a higher up who can help out. Also by cutting the meeting off but wanting to continue the negotiation will give you the power back. The problem is to come up with a different plan at the next meeting.

THE PASSIVE- AGGRESSIVE NEGOTIATOR
These are your people who say “yes” to all your opinions, theories, facts and talk but never want to discuss settlement. If you have ever encountered one of these, you start out feeling that you have the meeting aced. Soon you find out that you could stay there for 3 weeks and still not get anywhere.

The clue is to identify this off shoot of the cooperative appearing but really competitive type immediately. Otherwise you will be wasting a lot of your time.

You might try calling the game on this negotiator and saying something like “ You seem to be in agreement with my position, but I notice you don’t seem to want to actually negotiate the terms. Am I right? Is there some problem I can help you with?” These kind of people hate to have their game identified. On the other hand, you might just stop all communication by this.

The other thing to try is to only focus on the outcome and try to use techniques that work with the Competitive negotiator. Don’t get into your arguments regarding the substance of the meeting but go right for an agreement. Probably won’t work but worth a try. These types of people are particularly hard to pin down.

THE CHILDLIKE OR SEEMING NOT BRIGHT NEGOTIATOR
You will sometimes see this in a lay person who doesn’t understand how the meeting is conducted. You might, however, also get this from an attorney who likes to pull a “Colombo” on you. They are disguised Competitive negotiators.

The lay person may just need some guidelines and knowledge about how to conduct a negotiation, so don’t just jump to the conclusion that you are being “conned”. If you do feel that a more sophisticated person is playing naïve just for your benefit, then you really have a job ahead of you. Frequently, you may hear something like “I don’t know how this works”. Don’t be trapped into giving a lesson in negotiation. Hit back with “Well, I’m going to tell you what I want and why I think it is fair and you are going tell me what you think is fair if you don’t agree with me”. This is probably the only way you will ever get your side out on the table because these kinds of negotiators can take you up and down all kinds of side roads before they ever get to the resolution. Their method is to confuse the real issues, so beware.

THE NEVER ON POINT NEGOTIATOR
These are trickier than the seemingly naïve negotiator. They appear to be discussing the issues at hand but really are not. They will include a lot of war stories and try to keep you defocused. They will wear you down as the hours drag on and on and you are not moving closer to an agreement. Again, underneath it all, they are Competitive negotiators who would like you to say yes to whatever they finally come up with after an in terminable siege.

If you truly believe you have one of these on your hands, the best thing to do is to call their game and put your demand on the table immediately. They will then go off in never, never land and at that point, you will have to stop the meeting and set another time to continue. I know this is hard to do, especially when you have a client counting on you.

The other tactic is to call them on what they are doing. Again, this can blow everything up and will depend on how much real motivation the other party has for wanting a settlement. You can gently say something like “I am really enjoying your stories but unfortunately I have limited time and need to focus on reaching a resolution. In fact since I only have a few minutes left, can we both put out our opening offers”.

CONCLUSION
The real problem with all four of these types of difficult negotiators is that you don’t have the ability to flush out all the possible solutions, to brainstorm and increase the size of the pie through some collaborative efforts. Recognizing these limitations may make the meeting less successful, but you may still be able to get a good settlement if you play a little hard ball and don’t let yourself get distracted by difficult negotiators. Also, fortunately you don’t see too many of these.