By Michael Rappaport
Negotiation skills are crucial for lawyers when representing clients in many situations, such as making business deals or working out settlements. Regrettably, the strategies taught in law schools?-?such as the BATNA (the Best Alternative to a Negotiated Agreement) methodology popularized in the book Getting to Yes?-?tend to work better in theory than practice.
All too often the proponents of principled negotiation operate under the assumption that people are rational, honest, ethical actors who seek “win-win” solutions. Sadly, this is not always the case. In contrast, Getting More, the phenomenal bestseller by Stuart Diamond, aims to provide a more pragmatic approach to negotiation; one which works in the real world, taking into account the foibles of the parties involved. An internationally renowned negotiation expert, Diamond teaches negotiation at the University of Pennsylvania’s Wharton School of Business and he was the former associate director of the Harvard Negotiation Project at Harvard Law School. He developed his negotiating strategies over 20 years, teaching over 30,000 students and documenting their experiences applying his methodology in more than 100,000 journals, emails and notes.
Disclaimers are in order before diving into a summary of Diamond’s methodology. There are no Jedi mind tricks?-?only some principles of psychology and persuasion which may help you obtain better outcomes in negotiations. Not all of the tools and techniques in the book are applicable to every situation or legal actions. Diamond concedes these limitations, which is why he writes he titled his book “Getting More,” not “Getting Everything.”
Diamond provides a detailed template for conducting negotiations which he calls “The Getting More Model.”
For the purposes of this review there isn’t sufficient space to flesh out his skeletal outline. Instead, the review will try to add some meat to the bones by discussing some of the major takeaways from the book which are relevant for lawyers.
“Less than 10 percent of the reason agreements occur or fail has to do with the substance of the matter. More than 90 percent has to do with the people and the process,” Diamond writes. People often fail in negotiations because they ask for too much at once, according to Diamond. “They take steps that are too big. This scares people, makes the negotiation seem riskier, and magnifies weakness.” Diamond recommends using an agenda and breaking up the negotiation into multiple steps. Prioritize the issues based on what is easiest and fastest. Begin with the easiest and fastest issues to resolve. Get buy-in from the other party at each step. By advancing incrementally, one step at a time, you have a better chance of achieving your client’s goals.
Good communication is the basis of successful negotiations. “Most failed negotiations are caused by bad communication, or none at all. Don’t walk away from a negotiation unless all parties agree to take a break?-?or unless you want to end the negation,” Diamond advises. If you encounter communication issues during the negotiation, you should be upfront and try to frame the issues in a way which doesn’t cast blame, but instead focuses parties back on the goals of the negotiation.
Diamond enumerates the basic components of effective communication as follows: (1) always communicate, (2) listen and ask questions, (3) value, don’t blame them, (4) summarize often, (5) do role reversal, (6) be dispassionate, (7) articulate goals, (8) be firm without damaging the relationship, (9) look for small signals, (10) discuss perceptual differences, (11) find out how they make commitments, (12) consult before deciding, (13) focus on what you can control, and (14) avoid debating who is right.
Questions are more powerful than statements in a negotiation, Diamond writes. “A statement commits you to whatever you said; it doesn’t get you any information, and it gives the other side something to throw things at. You become the target. A question, on the other hand, doesn’t commit you, usually gets you information, and gives you something to throw things at if you wish. Questions focus the other side on themselves.”
Using the other party’s standards is one of the most powerful negotiation tools, according to Diamond. For example, in negotiating a settlement in a wrongful dismissal suit, you might want to refer to the employer’s corporate code of conduct and discuss how the employer’s actions toward the plaintiff breached the company’s own standards. “Standards are especially effective with hard bargainers,” Diamond writes. “It is a fundamental tenet of human psychology that people hate to contradict themselves. So if you give people a choice between being consistent with their standards?-?what they have said and promised previously?-?and contradicting their standards, people will usually strive to be consistent with their standards.”
During a negotiation you should try to trade things that the parties value unequally. “All people value things unequally. First find out what each party cares and doesn’t care about, big and small, tangible and intangible, in the deal or outside the deal, rational and emotional. Then trade off items that one party values and the other doesn’t,” Diamond writes.
When dealing with difficult people during a heated negotiation, Diamond recommends using emotional payments to assuage the other party. This may mean acknowledging feelings or making apologies, but nothing will be accomplished in a negotiation until the parties are ready to listen in a calm, rational manner. “When people are irrational, they are emotional. When they are emotional, they can’t listen. When they can’t listen, they can’t be persuaded,” Diamond cautions.
Often lawyers are reluctant to make the first offer in negotiations. Diamond advises that if you have a lot of information about the negotiation, such as the price, value or terms, you should make the first offer. By making the first offer you are “anchoring” the negation, setting expectations within a narrow range. Conversely, if the bargaining range is broad or uncertain don’t make the first offer, you are likely to negotiate against yourself. Their expectations may be a lot different than yours.
Diamond also cautions against making extreme offers. “Extreme offers kill deals. The other party usually feels insulted. If it’s too low, it devalues the other party. If it’s too high, often the other party gives up. It risks your credibility. If you make an extreme offer and then quickly back off it, the other party thinks you were trying to take advantage of them. Mistrust ensues.”
If no resolution is achieved during the negotiation, Diamond advises developing a task list at the end of the negotiation, with a timetable and individual responsibility. You want to ensure that all parties are on the same page and keep the parties on track for the next round of negotiations.
The book only occasionally discusses legal negotiations, such as a divorce settlement. Many examples cited in the book border on the trivial, such as negotiating a discount on a pair of dress shoes. Mild criticisms aside, Getting More offers a template, tools and techniques for conducting successful negotiations, which can be used equally well by the lay public and lawyers.