Negotiation is a fascinating intellectual topic, and obviously something lawyers practice regularly. During any typical work day, a lawyer is likely to be simultaneously involved in multiple negotiations – with clients, with other lawyers, with the Court, with governmental officials, regulators, and others. Being a good negotiator can be an invaluable skill for any lawyer.
Given the multidisciplinary nature of negotiation – it can often involve math, logic, psychology, communication, persuasion, and so forth – it regularly surfaces plenty of skill sets upon which to improve.
I’ve had the chance to teach some negotiation seminars, but for me I find that it’s a topic that affords an unusually expanding opportunity to continually learn. There are always interesting new theoretical angles to think about, and no shortage of practical, real-world examples from which to draw lessons. HBO’s recent “Too Big To Fail” was, among other things, certainly an interesting (albeit dramatic) study in negotiation under incredibly unique conditions, with extremely unusual players.
When I first got bit by the negotiation bug in school, I was introduced to a book that literally shaped how I’d think about virtually any negotiation I’ve had since.
Among all the low-quality jive on market that masquarades as negotiation advice (“sit in a higher chair”, “arrive last to any meeting”, etc.), there are several true gems. One of them is Fisher & Ury’s “Getting To Yes“, one of the selections on our Rocket Matter reading list. It is a classic, and a must-read for anyone even interested in negotiation. The book lays down theoretical principles but then suggests practical implementation tactics as well.
It’s the book from which I derived the best negotiation principle I ever learned: Focus on interests, not positions.*
(*One caveat. In truth, the best negotiation tactic is to develop enough good alternatives so as to make “walking away” a viable option in any individual negotiation. Having a good walk-away position is, without question, the best negotiation tactic, but that advice can be a bit “unicorns and rainbows.”)
With respect to the power of focusing on interests instead of positions, a simple analogy from the book has been forever implanted in my mind:
Two kids are sitting at a kitchen table. A single orange sits in the middle of that table. Each whines how s/he ought get it. Mom walks in, cuts it in half, and gives each child one-half of an orange. Problem solved. Quickly, simply, rationally, definitively …. biblically! Solomon-esque.
One child takes her half of the orange, eats the fruit, and throws the peel in the trash. Her brother takes his half, cuts out the fruit, and uses the peel for a school project.
Had interests been examined (why do you want the orange) rather than positions (I want that orange), a far better solution could’ve been achieved. Instead, a “distributive” view of the situation (zero-sum game) dominated, resulting in an arguably fair – but suboptimal – solution.
That’s a real example of “leaving money on the table.” It’s not necessarily that one particular party could’ve individually done better, it’s that there was value available that neither party surfaced or received, and that is attributable primarily to poor negotiation tactics.
Interests first, then positions.
If you have a great negotiation tip or experience you’d like to share, we’d love to hear it.