Much has been written about negotiation style and decision theory in the last 40 years. Getting to Yes was a sensation in 1981. It was followed by, among others, Start with No in 2002, Predictably Irrational in 2008 and Never Split the Difference in 2016.
Although these books mostly deal with selling situations or commercial negotiations, they also have relevance for lawyers. In every situation requiring a decision, logic, emotion and values will be in play. As lawyers, we are trained in logic. Emotion comes to us by nature. Values are learned and cherished.
These books touch on all three and offer valuable lessons for resolving conflicts.
Getting to Yes by William Ury and Roger Fisher, members of the Harvard Negotiation Project
Focus: Business negotiations
The principal rules from this book are the following: (1) Separate the people from the problem. Help the parties see that other viewpoints are not attacks on them. (2) Distinguish between position and interest. The position is something you have decided. The interest is what caused you to decide. Bargaining from a position encourages stubbornness. Note that an interest may be something like being able to continue running a business, or it may be a value. (3) Generate options. The parties should first brainstorm options together without evaluating them. (4) Agree to objective criteria and fairness standards adopted before negotiation. Insist that the result be based on objective criteria, such as market value, scientific judgment or legal precedent.
Power imbalance is always an issue. The authors coined the term “best alternative to a negotiated agreement,” or BATNA. Do what you can to improve your BATNA. Consider your alternatives if negotiation fails. By envisioning alternatives, the psychological pain of potential loss is diminished. This exercise allows you to be more engaged in the negotiation. If you are less powerful than your adversary, avoid sharing your alternatives, but attempt to learn the other side's alternatives.
Useful tools: Separate the people from the problem; focus on interests and values, not positions; use mutual problem-solving.
Start with No by Jim Camp
Focus: Commercial negotiations
If your adversary says maybe, it may not be worth your time to negotiate further. An immediate yes should be viewed with caution. The yes may be only to hook you into the negotiation, grind you down and force you into an unacceptable agreement. A no can come from either side, leaving the door open for further negotiations. The author of this book claims the no answer strips the emotional aspect from negotiations and opens the door for rational, logical negotiations.
Useful tools: Set aside your ego's needs and focus on your purpose and mission.
Predictably Irrational by Dan Ariely
People do not act rationally concerning price. Free is an almost irresistible emotional trigger. We consider the first price number as an anchor for future purchases by “arbitrary coherence.” Unrelated numbers can influence what price we will pay. We overvalue what we own. Expectations, prior experience and branding influence us. If something costs more, we may trust it more. Predictably irrational notes that we apply different sets of norms in two different circumstances: social norms and market norms. Social norms rule how we respond to friendly requests and favors, where immediate repayment of the favor is not expected. Market norms however are more cold and calculating requiring that resources are exchanged or that work is performed for pay. We often give up long-term goals for immediate gratification. We like to keep our options open.
Humans are deeply irrational in most of the daily decisions we make. From deciding what price to pay for a television to struggling to eat healthier food, our choices and behaviors are guided by irrationality. But we are not helpless victims. Through vigilance and caution, we can try to avoid irrationality and act in our best interests.
Useful tools: Watch for anchors. Decisions are routinely irrational.
Never Split the Difference by Chris Voss and Tahl Raz
Focus: FBI hostage negotiations
As illustrated in Thinking, Fast and Slow by Daniel Kahneman, the FBI recognizes we humans have two mental systems. The first system is the source of automatic feelings and beliefs that influence gut reactions. The second system makes deliberate assessments of choices and problems and articulates rational judgments. The FBI protocol has five stages: active listening, empathy, rapport, influence and behavioral change. The FBI uses open-ended questions to get the opposition to express their emotional needs and to feel in control. Behavioral change occurs when the negotiator has created in the other “unconditional positive regard.” That's when surrender occurs!
Useful tools: Ask open-ended questions. Put the other at ease.
Here are some additional useful tools from the books above:
- Find the real decision-maker.
- Set aside your assumptions and expectations before negotiating.
- Be open-minded.
- Learn the other's values.
- Determine and understand the other's pain or problem, and help them see their pain if they don't already recognize it.
- Look for many options.
- To create empathy, mirror the other by saying, “It seems,” followed by the last few words of the other.
- Find favorable comparisons for your solution.
- Show some vulnerability.
- Let the other show off.
- The questions you ask are key.
- Positivity promotes resolution.
I had a mediation that exemplifies how these tools can bring resolution. The parties were both nonprofit organizations. They had joined forces and funds to work with youth on environmental and climate change issues. Along the way, conflicts arose, and a lawsuit was likely to decide which party got to go forward and how much the other would receive for bowing out. In the mediation, by focusing on emotions and values, the mutual contributions were recognized, trust was restored, resentments released and an agreement reached whereby each party could move forward in this area with no payment to the other.
Originally Published by July 2022 edition of the King County Bar Association Bar Bulletin and is reprinted here with permission of King County Bar Association
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.