The art of negotiation
January - February 2013
Prepare, ask questions, and get your ego out of the way.
Photo credit: VEER.COM
Negotiation is the most important skill people use all the time, says Charles Craver, who teaches the subject at George Washington University Law School in Washington, D.C. Yet few lawyers have been trained in the art of the deal.
Here are some tips from Craver and three other experts on how to succeed:
Craver sets out six formal stages to the negotiation process: preparation, preliminary, information, distributive, closing and co-operative. Good negotiators, he says, are thoroughly prepared, which has a big impact on the eventual outcome. Before you sit down at the table, know all the factual, legal and economic issues as well as your bottom line, your goals and your opening position. Put yourself in your opponent’s shoes and ask what you think their goals and bottom line are.
It’s easier to treat someone badly if you depersonalize the interaction so establish a relationship and get on a first-name basis, says Craver. During the information stage, find out what’s on the bargaining table then ask a lot of broad, open-ended questions to get the other party talking. “The most effective negotiators ask twice as many questions as their less proficient cohort,” he says. At the distributive stage, vie for the items on the table. During closing, solidify the terms of the agreement. And in the co-operative stage, maximize both parties’ joint returns to ensure mutually efficient agreements.
Don’t give too much away
Once you get to the closing stage and there’s an agreement on the horizon, many people get so anxious to close the deal that they give too much away. Move slowly, Craver advises, and don’t make too many concessions. “Try to get the other side to do that.” Part of the art of negotiation is learning to trust your visceral reaction and being willing to walk away from the negotiation, Craver adds.
During the co-operative stage, offer to trade items that may have ended up on the wrong side of the table to see if both sides can simultaneously improve their positions by expanding the pie. People often overstate and understate the value of items for strategic purposes.
Think long term
Carrie Gallant, president of Gallant Solutions Inc. in Vancouver, advises lawyers to create opportunities for resolution. “The art in negotiation is really about matching the process to your objectives. Taking a long-term approach, looking at what is the outcome here, what is my best approach that will help my client achieve his or her goals.”
Carrie Gallant, president of Gallant Solutions Inc.
As a commercial lawyer, Ned Steinman, a partner at Norton Rose in Ottawa and Toronto, says it’s important for him to always recognize that his job is to complete the deal. “Get your ego out of it. Get the deal done.” The standard mantra holds that good lawyers understand their client’s business; in negotiation, he says understanding your opponent’s business is more important.
Be assertive but not aggressive, he adds. When he needs to be “extremely assertive,” Steinman says, “I will just draw the line in the sand and say ‘I can’t do this. So if you need this, let me know right now because the deal will be off and I’m not doing this anymore because I’m not wasting my client’s money.’”
Louis-Philippe Constant, a partner at Clyde & Co. in Montreal advises lawyers to address the tough issues first. “Typically there are not that many contentious issues in any given negotiation. You need to identify ahead of time what the heart of the problem is.”
Empathy is essential, Constant says. “Understand where the other party’s coming from and letting them know that you understand their position is a smart thing to do.”
Understanding body language
Seeing is believing, says Calgary body language expert Eliot Hoppe, and people’s body language speaks volumes. During the first few minutes after meeting someone while things are relaxed, observe the other person to establish a baseline: calibrate their skin tone colour, speech rate and blink rate. “When the stakes get higher, it’s the change in physiology, the change in emotion that you’re looking for,” he says.
Understanding body language
Knowing how to read others’ body language — while being aware of your own — can give you a huge advantage in negotiations.
• gesturing with loose wrists and fingertips apart signals rapport
• hands are visible
• touching the chest indicates sincerity
• leaning forward shows an interest in what’s being said
• touching the face conveys deceit
• touching the lips indicates a lack of agreement
• taking a step backwards or rocking on balls of feet reveals a lie
• hands out of view indicates holding something back
• interlocking and twisting fingers shows frustration
Set the stage for success
Setting up a meeting space for a negotiation is an often overlooked part of the process. Most negotiators prefer to play host in their own office, where they’re more comfortable and where they feel they have an advantage. Providing refreshments and being a good host can create a sense of obligation.
“Some people deliberately set up the office so that everyone will feel equal because they want to make it clear they’re not playing any games,” says Professor Charles Craver, of Washington D.C. “Others set it up so they can deliberately have the advantage.” That might include adjusting their chair higher than the rest or putting the guest in a smaller chair on the smaller side of the office.
“It all counts,” says Craver. “If you’re looking up to me, psychologically you might feel that I have more power.” Setting up the boardroom table with the host at the head or the two parties seated at opposite sides automatically sets up an oppositional dynamic.
Use good manners and put your guest at ease, advises Ned Steinman of Norton Rose. If not, “you’re already setting the tone that you are not conciliatory, you have your armour on.” A lack of cordiality sends the wrong message, he adds.
“We represent clients who have positions and things that they need, and we understand that there’s an adversarial aspect to it, but that does not negate proper polite behaviour and proper business etiquette. So putting you into a small room and not offering you a glass of water, not taking someone’s coat, not properly greeting somebody, are all negatives. And it sets a bad tone.”
Here are some other considerations: The tactical bully
Having a difficult person on the other side can make negotiating even more challenging. Sometimes it involves a simple personality issue, but your opponent might be using obnoxious behavior as a deliberate tactic. What do you do?
Be direct and tell him or her politely “that that type of behaviour is not going to be mutually beneficial,” says George Washington University professor Charles Craver. If it’s being used as a negotiating tactic, “don’t give in to them because when they realize that they’re not gaining by that, they’ll normally stop.”
But if someone is truly tough and even rude, “try to control the negotiating environment to minimize their ability to bother you,” says Craver, who advises using the phone and email more often. When dealing with someone in person who is very rude, people sometimes get angry and lash out, but by using the phone they can excuse themselves and call back when they’re calm.
If an impasse is reached, state the reasons, says Ned Steinman, partner at Norton Rose. “Explain it. Don’t just take a position for the sake of taking a position.”
A more significant problem is dealing with someone who is unreasonable, says Clyde & Co partner Louis-Philippe Constant. Some people have difficult personalities, but at the end of the day they do understand the issues, while “other people are pleasant and nice and they’ll listen politely but at the end of the day they just don’t get it.”
If the negotiation is going nowhere, “the best way to get your point across is to stop negotiating,” he advises.
Getting to Yes
• Getting to Yes: Negotiating Agreement Without Giving In
by William L. Ury, Roger Fisher and Bruce M. Patton
• Bargaining for Advantage: Negotiation Strategies for Reasonable People
by G. Richard Shell
• Effective Legal Negotiation and Settlement
by Charles B. Craver and Freda H. Alverson
• The Theory and Practice of Representative Negotiation
by Colleen Hanycz, Trevor Farrow, Frederick Zemans
• Beyond Winning: Negotiation to Create Value in Deals and Disputes
by Robert H. Mnookin, Scott R. Peppet and Andrew S. Tulumello
Effective Legal Negotiation
• Negotiation Genius: How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond
by Deepak Malhotra and Max H. Bazerman
• Dealing with the trappings of difficult behaviours.
Canadian Legal Conference, Saskatoon. August 2013. Watch for details.
• “Everything you need to be a great negotiator you learned before kindergarten,”
by Charles B. Craver
• “Practice the Art of Effective Negotiation,”
by Kimberly Stansell
• "Be thoroughly prepared and believe in your case and your situation."
Charlie Craver, George Washington University Law School
• "Take a long-term approach: look at the outcome, my best approach that will help my client achieve his or her goals."
Carrie Gallant, Gallant Solutions Inc.
Louis-Philippe Constant, Clyde & Co.
• "Know your client’s expectations and understand what the other party needs."
Ned Steinman, Norton Rose
• "Know your file inside out and know ahead of time what your objective is."
Ann Macaulay is a freelance writer based in Toronto.
Louis-Philippe Constant, Clyde & Co.5.