Getting to Yes
In a nutshell, do not bargain over positions. Easier said than done especially for lawyer's who have to base the theory of their client's case on legal positions.
Getting to Yes clearly demonstrates how arguing over positions at best produces suboptimal agreements, and at worst, decreases the probability of resolution. As more attention is paid to positions, less attention is devoted to meeting the underlying concerns of the parties.
Often clients are looking for a business or other non-legal solution to their problems so it is necessary to consider interests in almost, if not all, negotiations. Arguing over positions is quite inefficient and damages ongoing relationships.
So what should we do? Being "nice" and giving in is not an acceptable outcome for most clients and their lawyers. Getting to Yes has a number of useful suggestions some of which are:
- Separate the people from the problem.
- Keep your focus on interests.
- Invent options for mutual gain - the "win-win" approach.
- Look for objective criteria supporting what you want or need.
Looking at these points in more detail shows us how to use them.
Separate the people from the problem
You must keep in mind that negotiators are people first and every negotiator has two kinds of interests, the topic of the negotiation and the relationship with the other negotiator.
- The relationship tends to become entangled with the problem.
- Positional bargaining puts relationship and substance in conflict.
- If possible and it usually is, separate the people from the substance of the problem.
- Put yourself in their shoes.
- Do not blame them for your problem.
- Discuss each other's perceptions.
- Make sure they fully participate in the process and as a result have a stake in the outcome.
- Let people save face by making your proposals consistent with their values.
In dealing with this concept, you must recognize and understand emotions. This is not easy for many lawyers except perhaps in family law, as lawyers are trained to be "rational." It is important to acknowledge emotions as legitimate and allow the other side to let off steam. This means not reacting to emotional outbursts. This is easier said than done.
The key to success in negotiation and mediation as in any type of advocacy is persuasion through communication. Listening is not just sitting there; it is an active process and involves acknowledging what is being said by the other party. When we speak, we must do so in a way that helps understanding and remember to speak for a specific purpose not just to hear ourselves doing so.
It is not easy sometimes to build a working relationship with the other side but it is important if you want to deal with the problem.
Keep your focus on interests
Interests define the problem. Behind opposing positions are the potential for shared and compatible interests, as well as the obvious conflicting ones.
- Realize that each side has multiple interests and acknowledge this.
- Identify shared interests and focus on mutual options for gain.
- The most powerful interests are basic human needs and wants.
- How do you identify interests? Ask "why?" and/or "why not?"
- Think about their choice.
- Look forward not back.
- Be firm but flexible.
Invent options for mutual gain - the "win-win" approach
Remember that in most cases there is more than one solution and that "win-win" means that both sides win, or at least do not lose, not that one side wins twice!
- Solving their problem is your problem as well as theirs.
- Separate inventing from deciding - brainstorm to broaden your options.
- Identify shared interests and ask for their preferences.
- Try to make their decision easy.
Look for objective criteria
- This is something lawyers are good at doing.
- Look at how different experts, including the parties and the lawyers involved have dealt with similar problems in the past.
- Look beyond the law for trade, business or other industry standards that apply to the negotiation or dispute
- Try to agree on both sides retaining on expert.
This has been a very quick overview and I recommend that you read or re-read the book. Principled negotiation produces good agreements very efficiently as long as you use fair standards and fair procedures in the process.
You should never give in to unfair pressure and in many situations you may want to consider using a mediator to facilitate the process.
It is crucial that you prepare well and make sure you know both your "best alternative to a negotiated agreement" (BATNA) and your "worst alternative to a negotiated agreement" (WATNA) so you and your client understand what will happen if the negotiation fails.
If a win-win cannot be achieved, no deal may be the best result if you have planned out your alternatives. Do not be afraid to walk away from the table but do not threaten or bluff about doing so.
As you work on improving your negotiating skills, remember that it begins with preparation and includes a lot of listening instead of talking. If you can just do that, you will be a much better negotiator.