1 Discussion: Negotiations Analyze the following article: Improving Negotiation Skills: Rules for Master Negotiators. Describe a key point that stood out to you as a critical step you need to take in future negotiations. What is one area

Improving Negotiation Skills: Rules for Master Negotiators
This article was edited and reviewed by FindLaw Attorney Writers | Last updated August 10, 2018

Introduction

“A negotiation is an interactive communication process that may take place whenever we want something from someone else or another person wants something from us.”1

“Take it or leave it!” “This proposal is non-negotiable.” “Don’t ask me to go back to my client on this. This is all we are going to do.” “This is it. If you don’t want to accept it at that price, forget it.” “Negotiating with you is a waste of time. We’ll see you at the courthouse!” How do you feel when you hear statements like this? How do you feel when people are belligerent; when they hang up on you, literally or figuratively; when they let you know that they do not want to have a dialogue with you about such ethereal subjects as your needs, interests, or concerns about a proposal or a transaction?

If you react negatively to ultimatums, inflexibility, and statements like those in the preceding paragraph, you may come to the realization that other people feel the same way. Unless you are in the military, or subject to some similar hierarchical organization, you will conclude that, if you want to have a relationship with the party on the other side of the table or the other end of the phone, you must negotiate. Negotiation is unavoidable.

Most of us negotiate with one another frequently. Once we realize this, theoretically, we have two choices: accept the fact that negotiation is a way of life in our culture and improve our skills so that we can negotiate with confidence; or, do nothing about it. Some may argue that negotiation is an art, that it is intuitive; or, that we all know how to negotiate, learning basic skills on the playgrounds of life. Perhaps there are naturally gifted negotiators. But, as a lawyer and a mediator who has spent over 20 years litigating, negotiating settlements, negotiating transactions for clients, and negotiating personal transactions, I can attest to the fact that a lot of negotiators are not naturally gifted.

“… most people simply don’t know how to negotiate. Our parents don’t teach us how to negotiate, probably because their parents didn’t teach them how to negotiate. And despite the fact that negotiating is a vital skill, we’re taught nothing about it in school. That leads to the second reason there are so few negotiators: people don’t think it’s possible to learn how to become one. Since we’re not taught how to negotiate we just assume it cannot be taught. The third, and I believe most powerful, reason is fear.”2

We can all improve our skills as negotiators. But, how? Conjure up two individuals: the “Master Negotiator” and the “Novice Negotiator”. The Master Negotiator is not someone who works miracles, who can pull off remarkable “swindles” or hypnotize his or her opponents into barking like dogs and doing other things that they would not ordinarily do. The Master Negotiator is simply demonstratively better than the Novice Negotiator. The Master Negotiator’s skills are obvious. While he may not walk on water, he will consistently get the best deal possible under the circumstances. On occasion, perhaps even frequently, he will get remarkably good results. Why?

What sets the Master Negotiator apart? Why do we consider him a master? What does he know that the rest of us do not? What can we learn from him? My purpose is to address these questions and to provide some answers. My hope is that, if we can observe how the masters do it, the rest of us will improve by following their examples. In trying to formulate a picture of the Master Negotiator I have surveyed the current literature on the subject and added my opinions based upon my own anecdotal research. I have concluded that Master Negotiators follow certain rules that novices do not understand or that they do not implement. I have attempted to state these rules and discuss their corollaries.

This is a work-in-progress. Interested readers can find a copy of this paper and all future evolutions on my web site.

Fundamental Elements of the Negotiation Process

“… negotiations commonly follow a four-step path: preparation, information exchange, explicit bargaining, and commitment. … Negotiation is, in short, a kind of universal dance with four stages or steps. And it works best when both parties are experienced dancers.” 3

One of the interesting aspects to negotiation theory is that even the fundamental elements of the process are subject to varying opinions. The quotation above breaks the process down into four phases. I prefer three. Let’s review the basics before moving on.

Phase I: Pre-bargaining Phase

1. Information: Learn as much as you can about the problem. What information do you need from the other side?
2. Leverage Evaluation: Evaluate your leverage and the other party’s leverage at the outset. This is important because there may be a number of things you can do to improve your leverage or diminish the leverage of the other side. What will you do to enhance your leverage?
3. Analysis: What are the issues?
4. Rapport:4 Establish rapport with your opponent(s). You need to determine early on if your opponents are going to be cooperative; if not, consider employing a mediator as soon as practical.
5. Goals and expectations: Goals are one thing; expectations are something else.
6. Type of negotiation: What type of negotiation do you expect? Will this be highly competitive, cooperative, or something unusual? Will you be negotiating face to face, by fax, through a mediator, or in some other manner?
7. Budget: Every negotiation has its costs. Lawyers will avoid conflicts with their clients by discussing budgets sooner rather than later. Many times there are a number of choices for enhancing leverage. For example, you may enhance your leverage by taking several depositions, by adding parties to a law suit, by serving subpoenas on witnesses, or by hiring experts. Unless your client has unlimited resources, you will have to make some hard choices, which should be designed to give you the “most bang for your buck”.
8. Plan: What’s your negotiation plan?

Phase II: Bargaining Phase

1. Logistics: When, where, and how will you negotiate? This can be especially important in multi-party cases.
2. Opening offers: What is the best offer you can justify? Should you make it, or wait to let another party go first?
3. Subsequent offers: How should you adjust your negotiating plan when responding to unanticipated moves by your opponent?
4. Tactics: What sort of tactics will you employ? What sort of tactics is your opponent using on you?
5. Concessions: What concessions will you make? How will you make them?
6. Resolution: What is the best way to resolve the problem? Is there an elegant solution? Be on constant lookout for compromise and creative solutions.

Phase III: Closure Phase

1. Logistics: How and when will you close? At mediation or later on? Who will prepare the final agreement?
2. Documentation: Prepare a closing checklist.
3. Emotional closure: It’s one thing to end a legal dispute; it’s another to address the underlying interests and needs of the parties. If you neglect the latter, the agreement will probably not sustain.
4. Implementation: It’s not over until it is over.

Some of these elements are self-explanatory and elementary. I address the others below.

Rule 1: Attitude

Rule 1.1: Everything is negotiable all of the time.

Attitude is critical. Novice negotiators do not understand that everything is negotiable all of the time. They give up too easily. If you slam your briefcase and walk out of a negotiation session, they do not understand that this is a tactic; they interpret it as the end of the negotiation.

I had a custody case recently in which I was representing a father who was concerned about his ex-spouse’s emotional stability. Since their divorce, she had changed jobs several times, changed sexual partners several times, and had problems with her temper and her temperance. On his behalf, I contacted her lawyer and requested that she submit to a psychological evaluation. When that request was ignored, we filed a suit, requesting that the father have primary custody of the children. I then proposed to my opposing counsel that we schedule mediation. She refused because “your client wants custody of the children, and my client will never agree to that”. She failed to understand that my client’s lawsuit was a negotiating tactic. Had she understood this, she could have saved her client substantial legal fees. This is a common scenario. Many lawsuits wind up in court because lawyers do not understand that “positions” are always negotiable.

“Many attributes go into making a skillful negotiator, including such things as having a good memory, being ‘quick verbally’, and handling stress well. But effectiveness is as much a matter of attitude as it is of ability. The best negotiators exhibit four key habits of thought that everyone, regardless of their style or IQ, can adopt to improve their negotiation results …
A willingness to prepare
High expectations
The patience to listen

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