Life is negotiation. So much of our daily lives revolve around this
practice and yet so few of us spend any time truly learning what it
takes to become great at this requisite skill.
Think about it, how much of your life involves negotiation? Most
people don't realize when it is taking place. But it surrounds us. It is
who we are.
Sure, everyone knows that you have to negotiate to buy a car. Some may even know that almost every retailer
—if pushed
—will
negotiate a better price for an item. But what about the more subtle
forms of negotiation? Do you even recognize when these occur?
Have you ever said to your spouse "I'll take out the trash, can you
load the dishwasher?" Negotiation. When you ask for a raise.
Negotiation. Who's driving? Negotiation.
Since I was a child my parents have always told me I was good at
manipulating others. Negotiation. Perhaps it was inevitable that I went
into law, at least initially. A profession that heightened my abilities
at reading people and knowing how to react to the tells they were giving
me.
After a half a lifetime of negotiating and learning the techniques to
do so better here are a few of the secrets I have picked up:
Basic Skills
1. Listen
To negotiate you must learn how to listen and apply what you hear to
formulate your next move. Every word has a purpose. Every statement a
hidden tell. If you listen carefully, I mean really carefully, you will
be able to hear and understand what your opponent in the negotiation
truly wants. Listening is the bare minimum skill you must have to start
building your abilities as a good negotiator.
2. Be Willing to Walk Away
When two sides are negotiating one of the other most basic
skills you must retain is the ability to walk away if the deal does not
satisfy your requirements. Some may think this is axiomatic but it is
not.
Once I was assisting a friend to negotiate the purchase of a new car.
At the end we were close but the dealer refused to remove some extra
charge which was just more fat on the bone for their sales price. After
much back-and-forth over this item we reached an impasse: the salesman
would not take it out of the price and I would not move on him taking it
out. I stood up, politely thanked him for his time, and said to my
friend "Let's go."
To my surprise my friend remained seated, turned his eyes towards me,
his expression quickly changing to that of a child's wanting a toy in a
toy store, and said, "But I really want the car." At that point any
chance of continuing to negotiate a better deal evaporated like a puddle
on a hot Southern summer afternoon. If he would have stood and walked
we would have never made it to the door before that item was taken off
the cost. But by not being willing to walk away we gave the other a
critical advantage: he knew we would not walk. Always be willing to walk
away from a deal and let it be known in either a subtle or not so
subtle manner, as the situation dictates.
Intermediate Skills
1. Feign Indifference, Don't be Indifferent
Obviously we care about the thing we are negotiating for, otherwise
there would not be a negotiation. But just as we must be willing to walk
away from the deal, equally as important is that you must never let the
other party know how much you want or need to make the deal.
For example, for anyone who is familiar with my other writings you
may recall that I am a trial attorney that has tried hundreds of cases
in my career litigating thousands more. At some juncture during the
course of litigation the parties will eventually discuss settlement.
Irrespective of my client's concerns and directives I always feign
indifference during settlement discussion. Why? Because if the other
side ever gets a whiff that you are not willing to try the case they
will have a decided advantage over you in the negotiation process.
So no matter if my client is ready to take the case to the mat or
can't afford or does not want to move forward anymore opposing counsel
gets the same routine from me every time: "We can try to settle the case
or just go to trial. I'm good with whatever." The goal in feigning
indifference is to be as difficult to read as a blank page. In the end,
however, it is a valuable skill to have in any negotiation. So you may
not be indifferent, but never let them know.
2. Have the Ammunition You Need
In litigation this is about having your case ready to go to
trial if it does not settle and making sure the other party knows you
are ready. In other negotiations, such as in real estate, it's about
letting a prospective purchaser know you have another buyer on the line
and that if they do not meet your terms you'll just sell it to the other
guy. In any negotiation that involves an alternative action if the
terms are not met you must let the other party know you can, and will,
do a specific act they do not want you to do in the event terms are not
met. In short, let the other party know that you have your ammo and are
willing to use it.
Many years ago my then firm represented a man who had been
horrifically injured by a product. Our firm was brought in to represent
his interests against the manufacturer. Because of certain
confidentiality provisions I cannot mention the product or even the type
of product it was. Suffice to say, however, it was the first case of
its kind and had significant national exposure on not only a media level
but political as well. Well, as in any litigation case the parties are
required to exchange documents whether they are detrimental or not to
your case.
We knew that the defendants were holding out on us and saying that
these specific very damaging reports did not exist despite the fact we
had witnesses that testified to the contrary. We knew if we got our
hands on these reports they would be shaking in their boots. Well, to
make a long story short while referencing a great episode from Seinfeld,
we employed a special team of people to "retrieve" the reports for us
and "yadda yadda yadda" we appeared at pretrial with these
ultra-damaging reports in hand. The case, one of the most contentious
and longest I had ever been involved in, settled minutes later. Why?
Because we had the ammo.
So it does not matter if it is litigation, real estate sales with an alternative buyer, or otherwise, always have the ammo
—or appearance thereof
—to support your side in the negotiation.
Advanced Skills
1. What Motivates Them? Use it
As a prerequisite, you must always listen. Listening, as stated
above, is critical to hearing what the other side wants. But on a higher
level, you must strive to understand why. What is motivating the "Why"?
If you can listen between the lines to understand that which truly
motivates the other party you will gain a decided advantage in the
negotiation of the deal.
Let's take an example from McDonald's, the iconic company that is now
making significant inroads in China. A few years ago, I watched a
special on McDonald's that was fascinating. It went through the
company's history, business philosophies, and plans for expansion. In
regard to expansion, the company has at least one team of individuals
canvassing China looking for great locations for future McDonald's.
In this show, McDonald's found and built a restaurant on a relatively
undeveloped plot of land on the outskirts of an industrial city.
Why?
Because McDonald's had done its research and knew that within three
months of the purchase or lease of that land the local development
authority would be approving a mixed-use high-rise community situated
adjacent to McDonald's new location that would house over 20,000
residents. So, sure, McDonald's wanted the land to build a restaurant.
But if you were the owner of that land, wouldn't you find it helpful
to understand what motivated the selection of that site? Armed with that
knowledge, is it not reasonable to ask for a higher price in the
negotiation process? That
what in this instance is McDonald's desire to acquire the property. The
why, however, and a more thorough understanding of the
why, is what would really drive the deal.
So listen and figure out what motivates the other side. It will give you a leg up in the negotiation.
2. Lead Them to the Water and Let Them Drink
A good negotiator knows you can lead a horse to water but you
cannot make it drink. Despite your best efforts, the horse must drink on
its own.
In litigation, our clients are often frustrated at the length of time
it sometimes takes to settle a case out of court. Sometimes this
frustration even boils over into demands that we speed the process up or
make the other party sign or respond to an offer of settlement.
At the end of the day, however, no amount of complaining, yelling, or
otherwise can make the other party sign an agreement. In the end, you
can negotiate the deal but the final negotiation
—where you ultimately get the party to sign on the dotted line
—well, that is all up to them.
You cannot hold their head underwater until they sign. But you can
subtlety remind them that every day the agreement is not signed they are
just racking up more attorney's fees. Heck, I like to even throw in a
little humor referencing the fact I will soon be sending two kids off to
college, and I certainly don't mind if they take their time; they are
just helping with my kids' college-education fund.
So as in any negotiation, you must be tactful and subtle and lead
them to the deal but always mindful you cannot force a deal to be made. A
strategy of repeated subtle influence in this regard is often required.
3. Accent Morphing
Familiarity breeds comfort. Comfort leads to a heightened ability to
get a deal done. Let's face it, we are comfortable around those with
whom we feel some common bond. Years ago, when we got out of a lengthy
negotiation, my co-counsel turned to me and said, "Never realized you
had a Southern accent before." As the day wore on, my accent dissipated,
and I returned to my normal manner of speaking.
Well, it seemed that I had, during the course of negotiation with the
opposing counsel, started speaking in a slight to moderate Southern
accent during our marathon discussions before a court in Western
Virginia. The opposing counsel himself was a large, imposing Southerner
much like Fred Gwynne's portrayal of Judge Chamberlain Haller in
My Cousin Vinnie.
Well, it seems that somewhat subconsciously after hours of stalemate in
this heated discussion I had started adopting the accents of the
opposing counsel and the judge, a local legend himself. I know this may
sound crazy, but we traced when the ice broke in regard to the
settlement talks back to around the time I started speaking in a more
gentile, Southern manner.
And so began a practice of mine of sometimes morphing my accent, ever
so slightly in some instances, more so in others, to create a bond of
familiarity between myself and the person with whom I am negotiating.
Now, I'm not saying if you are from the deep South and are negotiating
with someone from Brooklyn you should suddenly lose your drawl and go
all Vinnie Barbarino on them. Rather, slight almost imperceptible
changes in your accent to mirror your opponent in the negotiation can
create an unconscious feeling of familiarity with you without the other
side even realizing it, to the extent that it can, and often does,
assist in the negotiation of a deal.
4. Vilify, Unite, and Conquer
Often we are placed in a position that no one wants to be in. A
position that someone else has put us in. But the only way out is to
negotiate a truce. This is often the case in law when you receive a
preliminary ruling that does not support your case or, as is often the
case, a ruling that makes trial more difficult for both parties. When
this occurs, use the master technique of vilifying the third party,
using it to unite those parties in the negotiation, and then conquer the
deal through the aforesaid vilification and uniting of common
interests.
For instance, we were once in a proceeding in which the judge made a
ruling on evidence presented at trial by opposing counsel that was going
to fundamentally change the outcome of the case. It was evidence the
opposing counsel had offered and, upon our objection, should have been
denied but the judge was new, did not know this area of the law very
well, and let it in over very stern objections. Even the opposing
counsel was stunned it was received.
At the end of the day, all trial counsel agreed that the party
offering the evidence was actually in a very bad position. They would
likely now win the case, but because the ruling on that critical piece
of evidence was simply wrong, we had an absolute grounds for appeal that
would be victorious years later, with the matter most likely having to
be retried at significant cost and expense.
So what did we do? Vilify, unite, and conquer. Realizing our good
fortune, we quickly vilified the court to the opposing counsel, making
it appear like the enemy. We established that all parties were now in
the same boat, having been sabotaged by this bad ruling. And we settled
the case, because no one wanted a three-year appeal that would result in
a new trial four to five years from the date of the current trial.
Vilify, unite, and conquer. It won't always be available for you. But when it is, use it to get a deal done.
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