How to Start a Successful Negotiation

Social psychologists point to mounds of research to prove that likeability is a major component of persuasion (e.g., Cialdini, The Psychology of Influence). Management professors invoke research to show that civility is important to closing the deal (e.g., Conger, Winning ‘Em Over). Legal scholars cite multiple studies to prove that building rapport is the most important initial phase of a negotiation (e.g., Craver, Effective Legal Negotiation and Settlement).

If you think about it, even our grandmothers knew this: “You get more with honey than with vinegar.”

First impressions count and every negotiation begins there. Your initial tone sets the stage. If you are positive, respectful, and professional, you start out ahead. If you or your mediator prefer not to start with a joint session, make sure you introduce yourself to everyone on the other side. Welcome them. Thank them for coming. Shake hands and make small talk.

If you are negotiating face-to-face, think of small talk as an integral part of the negotiation. It’s never wasted. The best negotiator I know can spend an hour on small talk before he gets down to business. By the end of that time, the other side sees him as a human being, not as “the enemy.” He gets fabulous results.

If this notion of the power of small talk is foreign to you, or if you have never appreciated its value, take some time to prepare for this “phase” of the negotiation. Think about topics that will bring you and the other side together, instead of figuring out how to keep yourselves apart. You will be laying the groundwork for a successful negotiation.

Creating a Negotiation Plan

Most of us prepare for mediations on auto-pilot. If we’ve evaluated the case, gotten settlement authority from our clients and written the mediation brief, we kid ourselves into thinking we’re good to go.

This tried and true method works . . . until impasse. Then we’re stuck, wondering why the case won’t settle, or, at a minimum, how the other side cannot possibly agree with us about the appropriate ballpark to be in.

One of the ways to avoid impasse is to create a negotiation plan. Then, if there are miscues or hurdles along the way, we have an organized, pre-planned way to deal with them. This is not to say that we won’t improvise, but at least we know where we’re headed and how to get there.

The essential elements of a negotiation plan include:

1. How to start
2. Where to start
3. What information to exchange—and when
4. Preparing to avoid verbal leaks
5. What concessions to make—and when
6. Bargaining strategies that work
7. Bargaining strategies to avoid
8. Preparing for emotions—(yours, your client’s, theirs)
9. Brainstorming through impasse
10. Saving face—(theirs)

I'll be writing about these in the next series of posts.

Hats Off to Michael Mortimer!

Speaking of civility, trial lawyer Michael Mortimer has an article in January’s Plaintiff magazine, “The courtroom: no place for personal attacks.” It’s worth a read.

Essentially Mortimer points out that when reading briefs, judges “get” who is casting aspersions. If the other side is making personal attacks, there is no need for you to stoop to their level, no matter how tempting. Not only is responding in kind counter-productive, such responses are a waste of the court’s time.

Mortimer recommends taking the high road. He also adopts a strategy I’ve used in the past when I’ve been irritated by opposing counsel: ask another lawyer to review your brief to edit out any hint of derogatory language. You want to be the guide, not the denigrator.

In oral argument, personal attacks are a distraction. They detract from your strong points. They damage your own reputation. While they may put the other side on the defensive, they do not make you more persuasive. In fact, just the opposite. More than any other legal group, judges appreciate civility.

This advice holds true for mediations as well. Your goal is to coax the other side inside your ballpark. Persuasion through civility, not denigration, is the key.

A Secret About Mediators

I hope not to get drummed out of the mediation profession for revealing this.

Mediators strive to be neutral, or as Ken Cloke so eloquently puts it, “omni-partial.”

But mediators are human, too.

If you come to mediations prepared, respectful and open-minded, you will go a long way towards gaining the mediator’s respect. Should that make a difference? No. Will it make a difference? No guarantees, but it might just be worth your while.

Here’s why. Years ago, as a young lawyer, I was selected as a juror in a criminal case. I think I was left on the jury because I was so young. (The lawyers figured I didn’t know enough do any harm in the jury room. Turns out, they were right.)

I learned an enormously important lesson during my jury service. I liked the prosecutor. I didn’t like the defense attorneys. It should not have had an influence in my decision-making about the case. But it did. That’s when I realized that as a trial lawyer, I wanted to be the nicest person in the courtroom.

The same holds true for mediations. As I lawyer representing a client, I want to be the nicest lawyer at the mediation. Why? Because I am more likely to persuade…not only the other side, but the mediator, too.

Robert Cialdini, a social psychologist at Arizona State University, has written the definitive book on persuasion which includes a chapter on likeability called Influence: The Psychology of Persuasion. It includes a chapter on likeability.

I’ve written prior posts on likeability here and here.

At your next mediation, try being likeable. Let me know the result.

Mediation: Why Bullying is a Wasted Opportunity

Further to my post below….

As a mediator, I see w-a-a-a-y too many lawyers play the bully card in joint session. I think it works against their clients’ interests. Here’s what I’ve observed:

· Most bullied lawyers just ignore it (so nothing is gained)
· Most bullied clients become further entrenched in their position, i.e., bullying pushes them away, rather than coaxing them to a position closer to yours (so an opportunity is lost)
· Everyone else in the room thinks you’re a pain in the derriere (so your ability to persuade is diminished)

None of these outcomes resulting from bullying tactics enhances your clients’ position, which is what they hired you to do. Mediation is a venue where you can show off your skills to your clients with whom you are spending the better part of a day. So show off your intelligence. Be positive, creative, deft, nuanced. Your clients will appreciate you all the more.