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The Legal Content Curator: Four Hints for Improving Your Negotiation Skills

Atticus Finch, the lawyer in the well-loved novel, To Kill a Mockingbird, says to his daughter, "You never really understand a person until you consider things from his point of view . . . until you climb into his skin and walk around in it."

Sometimes, as lawyers, that is our job. We are always expected to advocate for our clients, but sometimes we need to do more than that, and put ourselves in the shoes of the other party to understand where they're coming from. If we want to settle cases, or to negotiate an agreement, or to mediate between two parties without resorting to litigation, focusing less on staunchly opposing the other party can do a lot to help.

In Getting to Yes: Negotiating Agreement Without Giving In, Robert Fisher and William Ury provide powerful tips for reaching agreements that do not compromise on values and principles. Based on the Harvard-developed method of "principled" negotiation, as opposed to "positional" bargaining, the book makes four major points to help improve negotiating skills.

  1. Separate the people from the problem. "On both the giving and receiving end, we are likely to treat people and problem as one. Within the family, a statement such as "The kitchen is a mess" or "Our bank account is low" may be intended simply to identify a problem, but it is likely to be heard as a personal attack." Instead, we should frame the question as a problem to be solved by both parties: How do you think we can best create a system that ensures the kitchen stays clean?
  2. Focus on interests, not positions. "Ask "Why?" One basic technique is to put yourself in their shoes. Examine each position they take, and ask yourself "Why?" Why, for instance, does your landlord prefer to fix the rent -- in a five-year lease -- year by year? The answer you may come up with, to be protected against increasing costs, is probably one of his interests . . . Ask "Why not?" Think about their choice. One of the most useful ways to uncover interests is first to identify the basic decision that those on the other side probably see you asking them for, and then to ask yourself why they have not made that decision. What interests of theirs stand in the way?"
  3. Invent multiple options looking for mutual gains before deciding what to do. "[A]ll too often negotiators end up like the proverbial children who quarreled over an orange. After they finally agreed to divide the orange in half, the first child took one half, ate the fruit, and threw away the peel, while the other threw away the fruit and used the peel from the second half in baking a cake. All too often negotiators "leave money on the table" -- they fail to reach agreement when they might have, or the agreement they do reach could have been better for each side . . . To invent creative options, then, you will need to (1) separate the act of inventing options from the act of judging them; (2) broaden the options on the table rather than look for a single answer; (3) search for mutual gains; and (4) invent ways of making their decisions easy."
  4. Insist that the result be based on some objective standard. "If trying to settle differences of interest on the basis of will has such high costs, the solution is to negotiate on some basis independent of the will of either side -- that is, on the basis of objective criteria." For example, look to past precedent, to scientific evidence, to a third party, to the flipping of a coin, or otherwise.

These four points form the basis of a negotiation style based on principle, rather than on hard positional bargaining. If we focus on the interests of both parties, and on our principles and values, it is much easier to come together with the other side. As Fisher and Ury state in Getting to Yes: "The ability to see the situation as the other side sees it, as difficult as it may be, is one of the most important skills a negotiator can possess."

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