Think you Know all There is to Know About Negotiating? Think Again!

If there is one thing that almost all lawyers do, it is negotiate. Business lawyers do it. Litigators do it do it. Real estate lawyers do it. I suspect that even patent lawyers do it.

Most of us think we do it well. Particularly after you have been practicing for a long time, you feel confident about the things you do over and over. And you are probably right. If you’ve been a practicing lawyer for a long time, you’re probably a pretty good negotiator.

Still, I remember negotiating as one of the most challenging things I had to learn when I started in private practice. At least in those days, there were few law school courses about the art of negotiation.

Most lawyers learn to negotiate after they begin to practice. If they are lucky, they have a mentor who is a skilled negotiator and is happy to teach it. Many lawyers are not so fortunate. Perhaps the best training in negotiation that some law firms provide for young lawyers is negotiating the lawyer’s own salary!

 I learned, like most of my colleagues, through trial and error.  I did make a real effort to understand more about the subject, including reading Roger Fisher and William Ury’s book, Getting to Yes, shortly after it was published back in 1981. It was useful, but a bit impractical for a lawyer practicing civil litigation. There are not so many win/win solutions when the question is how much money your client will receive or pay.

Not long after that, I was fortunate to be selected as an Early Neutral Evaluator in the first such program for the U.S. District Court for the District of Vermont. We had good training on how to facilitate negotiation and I started working as mediator.

 As a neutral, I’ve observed countless other lawyers negotiate. I noticed which techniques seemed to work and which did not. And I kept reading, although until this month, I never came across a book on the subject that I thought was really good.

Well, now I have. I just finished Chris Voss’ book, written with Tahl Raz, Never Split the Difference: Negotiating as if Your Life Depended on It (Harper Collins Publishers 2016). 

The book covers the waterfront on negotiation technique. No matter how skillful a negotiator you are, there’s something in this book for you. The lead author, Chris Voss, is a former international FBI hostage negotiator. The emotional challenge of negotiating where people’s lives are at stake has obviously focused Voss’ attention on the subject. And the context in which he has negotiated lends itself to great, if sometimes tragic, stories about how he has employed the techniques he discusses. That makes the book an entertaining read, as well as an informative one.

Voss has also taught negotiation at the University of Southern California’s Marshall School of Business and Georgetown University’s McDonald School of Business, as well as lecturing at Georgetown University’s McDonald School of Business, the MIT Sloan School of Management and Northwestern University’s Kellogg School of Management.

Not everything in the book is directly useful to the normally mundane negotiations that most lawyers are engaged in. But if even one of the techniques Voss suggests would be useful, the book is worth your time.

Voss makes the important point, quickly learned by any mediator worth his or her salt, that listening intently is the key to effective negotiation.

Let me give you a few examples of techniques that Voss covers. He points out the importance of “mirroring,” that is, repeating the last few or critical words that your opposite number has used. This helps build an empathetic relationship between the negotiators. Voss doesn’t just suggest this approach, he gives you the right process for doing it.

And my favorite technique — one that I have used before but did not have the vocabulary to describe until I read this book — is the use of “calibrated questions.” These are open ended questions that begin typically with the word “what” or “how,” or even very rarely “why.”

The point of these questions , which ask for help, is to create the impression that your opponent has control of the conversation and help to generate crucial information that you can use to move the process in the right direction.  Voss suggests several calibrated negotiation questions. My favorite is “How am I supposed to do that?”

Voss also offers great advice on how to say “No” without ending the negotiation in failure.

Unlike many books about negotiation that ignore the traditional positional bargaining which occupies a major share of most lawyers’ time, Voss offers some guidelines for this kind of maneuvering. He calls it “Ackerman Bargaining,” and suggests a formula for increasing offers (or reducing demands) that he thinks will lead to settlement.

The positional bargaining that I see as a mediator, and advocate, typically has many more steps than the three steps Voss describes. This may simply be a function of the fact that this kind of bargaining is very well developed among litigators.

There’s lots more here and I can’t tell you everything in a page or two that takes Voss 263 pages to deliver. But I will share one more idea.

Voss suggests that it’s important to know what kind of negotiator you are: an “analyst,” “accommodator,” or an “assertive.” it’s equally important to accurately categorize your opposite number.

If all this hasn’t persuaded you to read Voss’ book, I’m tempted to chalk it up as a good thing — after all you won’t be applying these techniques against me!

But in the interests of fairness (a word that Voss has very specific advice about), you can learn more by taking a look at a great six page “Summary Cheat Sheet,” based on the book created by Yan-David Erlich,  by clicking here.

Happy negotiating!


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