Negotiation Techniques

Negotiation Techniques

Summary: Lawyers who understand these common negotiation techniques can plan their strategies more effectively. They can enhance their skill in the information phase, increase the likelihood that they will achieve acceptable agreements during the competitive phase, and endeavor to maximize the gains obtained for their clients in the cooperative phase.
I. Reading 3-1: Negotiation Techniques: How to Keep Br'er Rabbit Out of the Briar Patch
Three Formal Phases of the Negotiation Process
A. Informative Phase – knowledge and desires of opposing party (strengths, weaknesses, strategies)
· Try to learn as much as possible
· Determine underlying needs and interests behind opponent's positions
· Decide what information you are willing to disclose vs. what you are required to disclose
· Use blocking techniques to minimize unnecessary disclosure

B. Competitive Phase – articulation of your own demands
· Principled Offers and Concessions – High, but rational objectives, rational explanation for changes of position
· Argument – Factual and legal arguments, emotional appeals in some circumstances
· Threats and Promises – Overt and implicit threats, less challenging warnings, "split the difference approach" (one side promises to move halfway if the other side does too)
· Silence and Patience – The more you talk, the more information you disclose and the more concessions you make
· Limited Authority – Actual or fabricated, used to obtain a psychological commitment to settlement and to get concessions before actual negotiation begins
· Anger – likely to offend opponents and disclose information, used to show seriousness
· Uproar – threatening dire consequences, need to consider how likely it is to actually happen
· Settlement Brochures and Video Presentations – states factual or legal basis for a claim
· Boulwareism – "best offer first" or "take it or leave it"
· Br'er Rabbit – use reverse psychology, make opponent feel like you have accepted an unfavorable argument
· Mutt and Jeff – One reasonable negotiator professes sympathy toward the concessions made by the other party, while his partner rejects each new offer as insufficient (good cop/bad cop)
· Belly Up – wolves in sheepskin, effectively refuse to participate in negotiation process
· Passive-Aggressive Behavior – such as showing up late for meetings, not bringing important documents, failing to write up agreed-upon terms

C. Cooperative Phase
n Explore alternatives that might enhance the interests of both sides
n Parties can initial or sign their current agreement, and then seek to improve their joint results
n Still a competitive phase, using power-bargaining techniques

II. Reading 3-2: Secrets of Power Negotiation
A. The Myth of "Win-Win" – more important is the ability to convince other party that they have won
B. Ask for more than you expect to get
n "Effectiveness at the negotiating table depends on overstating demands"
n Maximum Plausible Position – most you can ask for and still be credible

C. Never say yes to the first offer
· Flinch – always react with shock and surprise
· Avoid Confrontation – agree initially and then turn it around (Feel, Felt, Found Formula)

D. Play the reluctant buyer or reluctant seller – "wish number" and "walk-away price"

E. The Vise Technique – "You'll have to do better than that"

F. Don't Worry about Price – find other ways to make opponent feel like he/she is winning

G. Higher Authority – say that you have to consult with a higher authority, opponent will make more concessions to a person they don't see or know

H. Don't Split the Difference – let the opponent suggest splitting the difference, makes them feel like they won something

I. Set it Aside – focus on other issues, then change the people in the negotiating team or the venue

J. The Art of Concession – don't fall into a pattern of concessions, don't make equal-size concessions, never make the final concession a big one

K. Make Time Your Ally – more time = more concessions (80% of concessions occur in last 20% of negotiations)

L. The Most Dangerous Moment – most vulnerable is when you think the negotiations are over, don't show emotions or disclose any information

M. Your Most Powerful Weapon – Walk-Away Power – give the impression that you can walk away from the negotiations at any time