Practicing Negotiation

Negotiation professors Charles Craver and Linda Babcock recommend practicing the art of negotiation at every opportunity. In fact, they suggest creating opportunities to negotiate where seemingly none exist.

Here’s how I put their recommendation into action.

Over the years, I have been invited to a series of potluck dinners by my friend, the restauranteur. My dilemma, of course, was always what to take to a potluck hosted by a renowned cook. No point cooking, right? Instead, I have relied on taking a bottle of Old Raj, a distinctive gin favored by her husband. It is distilled with saffron. The result is a slightly orange-ish color and a different subtle but piquant taste. (Hey, I live in Northern California. You’re lucky I didn’t say oaky with a nose of pear.)

As is too often the case, on this occasion I left the purchase of the Old Raj until the last minute. It’s a little hard to find. Even in San Francisco, it’s only carried by a few stores. My office is downtown, where there are even fewer retail outlets available. In prior years, I had bought it from a discount wine store, but it was too far away from my office to get to before the dinner. So I went to a liquor purveyor downtown. I was aghast at the price: $65!

O.K., I said to myself, no time like the present. I waited to approach the salesman until the last customer had left the cash register. Holding the Old Raj and my credit card in hand, I said,
“I can get this bottle for $55 at the wine store. Can I buy it from you right now for $60?”

He looked at me, paused, and said, “Yes, I think we can give you an in-store discount.” He then rang it up for me with a 10% discount. I did even better than I had asked for!

The end result: I paid more than the wine store’s price, but I didn’t have time to go there. I got what I wanted, when I wanted it, at a reduced price from the stated price. The store got a sale versus no sale.

Win-win in action.

The secret is….ASKING.

We Americans tend to believe the stated price at a retail store is the price. Not necessarily. You can practice your negotiation skills every day by asking retail establishments:

Is this your cash price?
Is this your best price?
Is this your price if I buy it right now?

Try it and let me know how it goes.

The Advantages of ADR Blogging

Sometimes I ask myself, why did I get started in this crazy business of blogging?

I had this idea that I wanted to review the literature on negotiation and mediation and organize my thoughts in a systematic and focused way.

My next challenge. I am intellectually fascinated by conflict resolution but constitutionally lazy. Heeding the advice, “You can’t get to Step 2 unless you take Step 1,” I dove in by starting a blog. Now I feel an obligation to my readers to keep at it. If you are going to take the time to read it, I can at least try to provide you with something of value.

I’ve been blogging for six months. Here are the advantages I see:

Ø I am involved almost daily in thinking about a subject that holds my intellectual curiosity
Ø I get to write about ideas I am passionate about
Ø I have online discussions with colleagues in the field of conflict resolution
Ø I make the time to read the literature
Ø I am challenged by readers to defend my positions
Ø I’ve met a lot of wonderful people in the blogosphere
Ø With the press of a button, I can spout off my humble opinions

Blogging takes time, but its rewards are rich. Vickie Pynchon challenged me to blog instead of writing for myself. I don’t know whether to thank her for it or *@??!!##* her out. Just kidding, but it reflects the reality of blogging as a blessing and an addiction. Just ask the man I’m seeing.

Challenging Conflict: Mediation Through Understanding

Gary Friedman and Jack Himmelstein have written a tour de force on empowering parties in conflict to work through their conflict together. Challenging Conflict: Mediation Through Understanding is their new book. Buy it here or here. Today.

Friedman and Himmelstein have collaborated on “ways of working through conflict that seek to honor the best in the human spirit and provide professionals with a way to be authentic and true to themselves." They have taught together through the Program on Negotiation at Harvard Law School and through the non-profit they started, The Center for Mediation in Law.

Now, the rest of us get to reap the benefit of their collaboration by reading and studying their new book. Through elegant writing and the use of case examples, they explain the mediation model they have practiced and honed for thirty years.

They call the conflict resolution model they espouse the “understanding-based method.” At its core, it empowers the parties to take responsibility for deciding whether and how the conflict will be resolved and it recommends they work together to make those decisions. It also encourages the parties to examine what lies beneath the conflict, which can lead to a more complete, or holistic, resolution.

The authors believe that the parties not only best understand the conflict, they best understand what lies beneath the conflict. Their method necessarily involves joint sessions, as caucusing only gives the mediator, not the parties, the most complete understanding of the conflict.

I think this book would be especially enlightening to lawyers who have only experienced the judicial settlement conference/shuttle diplomacy/caucusing method of settling their cases. I would hope that they would open themselves up to the possibility that their clients can play a part in the settlement process. As a lawyer of a certain age, I know it’s not the way we’ve been trained, on-the-job, to act. But the results can be transformative to your clients. And if your clients are amazed and appreciative of this result, you have given them a value-added service, they’ll be repeat clients, you’ve enhanced the stature of the legal profession, and you’ll feel pretty good about yourself, too.

I’d call that a win-win-win-win (your client, the other side, the legal profession, you).

Update. See Stephanie West Allen's review at her Idealawg blog.

"Winning" at Mediation: A Blueprint for Preparation

I’ve been honored by Tammy Lenski with an interview that she posted today on her blog, Mediator Tech. Tammy is a leader in blogging, marketing and technology, so I was especially appreciative that she featured my new pamphlet, “Winning” at Mediation: A Blueprint for Preparation. I just published the 24-page color pamphlet in which I compiled tips for lawyers on preparing for mediations. Let me know if you’d like a copy, and be sure to send one to your favorite Northern California lawyer!

You can read the interview here. Be sure to check out Tammy’s other great blog: Conflict Zen.

I’d also like to thank fellow bloggers and mediators Geoff Sharp at Mediator blah...blah…, Chris Annunziata at CKA Mediation and Arbitration and Jim Hildreth at Real Estate Mediation for their kind words about the pamphlet. Offline, I’ve heard nice things from Vickie Pynchon at Settle It Now Negotiation Blog and Diane Levin at Mediation Channel.

My thanks to all. Mediators are warm and affirming and I enjoy hanging out with them here in the blogosphere.

Persuasion Through Appreciation

Face it. We all like to be appreciated. Even lawyers. Even opposing counsel.

From Fisher and Shapiro, Beyond Reason:

“If you and the other side appreciate one another, you are more likely to reach a wise agreement than if each side feels unappreciated. In fact, you benefit by helping the other side feel appreciated, whether or not they reciprocate. They will tend to feel more at ease and cooperative. And by appreciating them, you are more likely to foster their appreciation of you.”

They suggest expressing appreciation by working to understand the other side’s point of view, looking for merit in what they think, do or feel, and communicating that we understand. By asking questions we can work to understand the other’s point of view.

Of course, there’s no point in asking unless you are prepared to actively listen to the answer. One way to actively listen is to reflect back what the person has said, to make sure you understand. You can do this by summarizing the facts of what they said (So if I understand you…), or, more dangerously, by noting the underlying emotion (It sounds like you’re frustrated by how this went down…).

Once you “get” them, the next step is to find something of value in their position. If you can’t agree on their position, perhaps you can look for merit in the way they reached their position.

Then, let them know. Tell them what you appreciate about their viewpoint or their logic or their reasoning or their openness or their forthrightness. This is not giving in. This is finding something to appreciate and stating it. Be authentic in your appreciation.

Once people feel heard and appreciated, they are more likely to listen to you. Now you’ve set the table to persuade.

Yes! 50 Scientifically Proven Ways to Be Persuasive

Professor Cialdini’s done it again! In this eminently readable book, he and his co-authors (Noah Goldstein at the University of Chicago and Steve Martin of Influence at Work in London) have put together 50 persuasion techniques which have been proven by social science research to be effective. The book has only been out for about a month.

Summer’s only half over. If you buy Yes!, now, you will come back to work in the Fall with persuasion techniques which will give you a decided advantage over your opponents and your colleagues.

There are many nuggets for influencing others in this book. My favorites include:

The power of the post-it note (#10)

The downside to voicemail (#50)

The danger of being the brightest person in the room (#23)

For negotiators, one of the most interesting techniques is #35, the use of the word “because.” In this study, researchers wanted to know what influenced people to make a concession. They used the line for the copy machine in a college library. The researcher would ask to cut in line. If she gave no reason, she had a 60% chance of being allowed to cut in line. If she gave a reason, the chance of being allowed to cut in line was increased to 94%. (E.g., May I use the Xerox machine because I am late for my class?) However, even if a meaningless reason was given after the word “because,” her chances of being allowed to cut in line were 93%! (E.g., May I use the Xerox machine because I want to make copies?) Even though the reason made no sense (after all, everyone in line wanted to make copies) it generated practically the same positive response as the one having a good reason. A greater request did not have quite the same response; however, coupled with “because” and a good reason, the response rate doubled.

Using this technique in an unscientific study, my friend asked to cut in the T-shirt line at the Stranded Naked Party at Fiddle Cay on July 3rd, by asking, May I cut in line because I want to buy a T-shirt? (which is what everyone standing in this line wanted). He was allowed to cut in. Whether this was because he said "because" or because the people standing in the T-shirt line had just come from standing in the free margaritas line is yet to be determined.

In any event, the scientific study dovetails with the advice of negotiation professors such as Charles Craver. He advocates giving principled reasons for each concession. The principled reason (because) begets a concession in return. Which brings us back to Cialdini and the Rule of Reciprocity. See, Cialdini, Influence: The Psychology of Persuasion.

Negotiation: The Disconnect

I’m seeing a disconnect between what’s being taught to current law students about mediation and what the best negotiation professors are advocating versus what’s actually taking place in front of me in many mediations.

Current teaching. Last Spring, the ABA’s Dispute Resolution Committee held a mediation competition for law students. (Quinnipiac University School of Law’s team won, which I wrote about here.) The ABA’s scoring system gave the highest marks for demonstration of the following skills:

1. Encouraging clients to speak during the mediation
2. Establishing a problem-solving relationship with the other side, if possible
3. Recognizing the other side’s interests and trying to satisfy them when possible, given their client’s interests
4. Taking initiative to convert the other team into problem-solvers
5. Generating a range of legal and non-legal options to meet client’s interests, as well as interests of other side
6. Evaluating and selecting options based on interests as well as objective criteria
7. Actively encouraging development of creative ideas

Current literature. The best negotiation professors also stress these skills:

Collaboration

Cooperation

Positive attitudes

See, Babcock & Laschever, Ask for It; Craver, Effective Legal Negotiation and Settlement; Craver, The Intelligent Negotiator; Fisher, Ury & Patton, Getting to Yes; Fisher & Shapiro, Beyond Reason; Goldberg, Sander, Rogers & Cole, Dispute Resolution; Lax & Sebenius, 3D Negotiation; Malhotra & Bazerman, Negotiation Genius; and, Ury, Getting Past No, to name a few.

Current practice. There are lawyers and clients who use the approaches and skills outlined above. In my experience, however, there are an equal number of lawyers and clients who apparently believe that “hard” bargaining is the best way to negotiate.

What the advocates of collaborative bargaining point out, however, is that even when hard bargaining is effective, often it leaves value on the table that could have been claimed by the negotiator using a hard bargaining approach. Bottom line: the client loses out.

Creating and Claiming Value. As a lawyer, I want to claim as much value for my client as I can. The counter-intuitive part of collaborative bargaining is that while I am claiming more value for my client, I am offering more value to the other side. This is the win-win outcome that is a result.

Let’s use the orange story as an example. (See original post here.) Two sisters are having a dispute over a single orange. Each wants the entire orange. If the lawyer for the older sister asked questions of the younger sister, he might have learned that the younger sister was interested in making orange juice. If the lawyer for the younger sister listened carefully in conversation with the older sister’s lawyer, she might have discerned that the older sister wanted to use the rind of the orange to flavor a cake. At that point, the lawyers could have settled the case without the assistance of a mediator. The settlement agreement would have been written up to give the older sister the rights to the orange rind and the younger sister the rights to the juice.

This is a win-win example. Each sister gets 100% of what she wants. Neither has to “settle” for less.

Impress your client. Be more collaborative throughout discovery. Talk more frequently with the other side. Keep your focus on what your client really wants. Be creative. Create and claim more value for your client and for the other side. End result: your client will be the winner and you will be their go-to lawyer.

Persuasion through Zen

Earlier this year, Tammy Lenski initiated a new blog: Conflict Zen. Tammy is a veteran of the blogosphere and has had a large and faithful following at Mediator Tech (out of which grew her new book, Making Mediation Your Day Job). Buy it here. Whether you plan to be a mediator or not, it will help you make better career decisions.

Tammy has now expanded her reach to include tips for “keeping your balance in conflict” for everyone: parties, lawyers, mediators and other dispute resolution professionals. On this blog she concentrates on conflict resolution coaching.

I’ve been enjoying her posts, as I can use all the coaching I can get.

Persuasion Through Storytelling

Check out the little boy's face. Remember when you were a little kid listening to stories? They can be mesmerizing. Even for adults, as there is a child in each of us. Somewhere.

Lawyers who try cases know that telling stories in opening statements and closing arguments is a compelling and persuasive way to influence juries. As Annette Simmons in The Story Factor puts it, when you are trying to influence a group, giving them more facts is just piling on more facts. Jurors probably have more facts than they can process well. She suggests:

“They don’t need more facts. They need help finding their wisdom….A story will help them figure out what all the facts mean.”

And as the best trial lawyers know, when you let jurors access their own wisdom to reach their own conclusions, they are more likely to own that opinion than when you tell them what their opinion should be.

Why not use this same process during mediation? At times, mediations digress into a tug-of-war between the egos of opposing parties and/or opposing counsel. Storytelling has the ability of making a point without setting off an ego war. Ease them out of their point of view.

Again, from Simmons:

“You don’t have to convince people they are wrong to influence them….Let your listener’s ego sleep. Concentrate instead on providing a visceral experience of a new story where new choices make more sense. Don’t back someone into a corner….Lead their conscious and subconscious minds on a tour of a different point of view….Intrigue and activate their imagination.”

And, finally, she asks:

“Which is more important to you—being right or influencing others?”

If you are interested in the power of storytelling, run, don’t walk, to your nearest independent bookstore or go to amazon.com and purchase The Story Factor by Annette Simmons. The book’s subtitle is “Inspiration, Influence and Persuasion Through the Art of Storytelling.”

My thanks to Stephanie Allen West at her blog, Idealawg, for the tip on Simmons’ book.

Negotiation: Persuasion Through Affiliation

Fisher and Shapiro in Beyond Reason advise negotiators to turn an adversary into a colleague. One way to do this is to seek out ties that bind, which they call affiliation. Affiliation occurs when we feel that we are “in it” together, (somewhat) like peas in a pod.

Fisher and Shapiro suggest connecting at a personal level. An effective way to do this is to talk about things you care about. I’ve found sharing stories about raising children to be a way to take a business relationship to a more personal level. (I’ve picked up some useful tips, too!) Other affiliations include age, rank in the legal world, politics, religion and common interests such as sports, hobbies, etc. As you might expect, if you are not authentic in trying to build affiliation, it doesn’t work.

Consider calling opposing counsel when you first receive their names and contact information. Set up a civil working relationship on the telephone. Meet them in person. Go out to lunch. Search out common backgrounds and interests. You can take-no-prisoners on the facts and the law, but on a personal level, a more collaborative style can work in your favor. There will be times when you will need to be cut some slack, too.

Remember that the overall goal is to persuade. If the other side feels some affiliation with you, they will be more ready to listen to you. Then you can more easily persuade.

To protect yourself from an affiliation manipulator, they suggest using your head and checking your gut feelings. This advice is similar to Cialdini’s: be aware of what’s taking place and don’t let your emotions prevail.

Happy Fourth of July!

Hope everyone has a safe and happy Fourth!

We started celebrating early with cheeseburgers and margaritas at the Stranded Naked party on Fiddle Cay yesterday.

On a related topic, if you missed my Memorial Day post about Any Soldier Dot Com, you can read it here.

Persuasion Through R-E-S-P-E-C-T

A tip from Aretha Franklin. . . .

I often marvel at the difference in outcome in mediations where respect is shown. Settlements are much more common in these circumstances.

On the other hand, I despair at the negotiating styles of those parties or lawyers who show disrespect. Here’s how it happens. The mediation is moving along. Real progress is being made. Then one side says something disrespectful. It’s like tossing a hand grenade. You can actually see the other side stiffen. Then their position hardens. Then you’re back to square one.

I have seen lawyers and parties be sarcastic, demeaning, belittling, disdainful or dismissive in mediation. Why they think that this will help them persuade the other side to close the gap between them to settle the case is beyond me. I’m not talking about all lawyers, nor all parties, nor all the time. But it happens often enough to make me wonder why negotiators would use a strategy which rarely works.

As a matter of human nature, the other side is more likely to be persuaded if they are shown some respect. At your next mediation, decide to be respectful throughout. Notice how the other side reacts to you. I’m guessing you’ll gain the competitive advantage. As the song says, “R-E-S-P-E-C-T. Take care, TCB.”