A phrase we often here these days is “social intelligence” to indicate how people read and use the social signals that produce success in relationships of all kinds. Negotiation is one such social skill, and I submit we are engaged in it every day with friends, family, and business associates. Some of us even use it with God (or try).
A book I just ordered based on a recent review is by the “National Institute of Trial Attorneys” and is entitled: “Advanced Negotiation and Mediation Theory and Practice.” See the Amazon Summary. Yes, I admit that even after 34 years of practice I lack a full comprehension of the many nuances of effective negotiations. Socially, I can sometimes be clueless. That’s fine, in my private nerd world. It is not acceptable for my clients in the middle of an intense negotiation session. So, I continue to read and learn.
This book covers the “social psychology” of negotiation. It addresses how individual personality and style must be factored into how the negotiation is best to proceed. The book explains how “small talk” isn’t small at all, but is an emotional “ice breaker” technique that opens people up to more substantive communications. The book covers also the importance of setting and agreeing upon an agenda for the negotiations, that is, the procedures and basic “rules of negotiation” that will apply. If everyone agrees, the process holds fewer surprises, and produces less angst over just how this might turn out.
After the “agenda setting” comes the “information bargaining” phase. This is an open ended questioning and listening process. The focus is to be on learning and communicating “interests” rather than just setting forth “positions.” A “position” tends to “I’m right, and you’re wrong” and can become entrenched or static. An “interest” is a goal that admits to multiple different ways of satisfying that interest, without being “good” or “bad” because of having the “interest.”
It is not only OK, but advantageous to be clear, emphatic, and even emotional in making your points. However, make your points in a non-threatening way (everyone knows already the alternatives to settlement), and use balanced arguments, acknowledging some areas of weakness to gain credibility in your perceived ability to accurately assess the merits of a case or defense. Be positive. Let the other party know why a “deal” has benefits to them, rather than just to you. No one buys an idea, good or service solely to meet your needs. Duh.
In closing the negotiation, it helps to have a deadline, where the settlement reaches a point of crisis: either the deal is concluded, or it falls through. This time limit sharpens the cost/benefit analysis as parties realize that if the case does not settle now, it may never settle, or if it settles, it may be on terms less advantageous than the present ones. Thus, many cases end by settlement in the last hour of mediation because the “posturing” has been exhausted, the parties have a better idea of the “realistic outcome” of the day’s efforts, and they know the present “bird in hand” may simply fly away, never to return, if they do not close the deal now.
Of the 200 pages of the book, only 19 focus on the mediation process, less than 10%. That is interesting given that many cases are diverted into Alternative Dispute Resolution by agreement of the parties. The value of this book is that it helps negotiators set the right tone, and do the right “ground work” before going to mediation. The authors believe, I think, that empowered skilled negotiators can often settle cases on their own, without a mediator. This approach may be especially true for trial lawyers who have the case in trial, and conduct negotiations during recesses, or impromptu settlement conferences while the jury is deliberating. Those kinds of “deadlines” can clear the mind.
So, I will be adding “Advanced Negotiation and Mediation Theory and Practice” to my negotiation library of some 7 volumes. It always helps to be reminded by a refresher course about the basics of good negotiation.