In this article from the Harvard Law School Program on Negotiation Katie Shock offers “5 Good Negotiation Techniques” that can help professional negotiators increase their bargaining power. These are:
1. “Reframe Anxiety as Excitement
2. Anchor the Discussion with a Draft Agreement
3. Draw on the Power of Silence
4. Ask for Advice
5. Put a Fair Offer to the Test with Final-Offer Arbitration”
I suggest you read her well written article but I also want to offer some insights beyond what she has stated that I think may help you.
1. Regarding the reframing of anxiety as excitement, I think of the analogy of danger and opportunity. Others that have critiqued Sun Tzu’s The Art of War have pointed out that the author looks at danger as an opportunity. This may be from the standpoint of war and the adrenaline rush associated with danger, or this may be nerves as suggested by Katie Shock. Either way de-escalation is the key. Remaining calm when faced with danger or anxiety is a key component in the business world. However, I might offer as a negotiator and mediator that reframing the issue is the real key. I could not agree more with the author. My own experience is not to reframe anxiety into excitement as the author suggests, but instead to truly focus on making it into an opportunity. De-escalation with a well prepared plan and an interest in working to develop positive working relationships goes a long way towards a more productive negotiation.
2. The author indicates that the party making the first offer “is likely to sway the discussion.” It is suggested this is a powerful “anchor”. “A standard contract” is suggested. I believe staring with something to work off of is helpful. Rather than proposing a standard contract, I might suggest some elements that are clearly in the interests of both parties to initiate an atmosphere of agreement. This should be well thought out ahead of time. Coming with an agenda that has been vented ahead of time is very helpful. By mutually agreeing to certain items and quickly reaching agreements related to the easier items it may be possible to develop a more cooperative environment related to sticker issues.
3. Silence is a powerful technic. The author makes a very good case and presents an example on point. If you ever feel yourself starting to get angry during the negotiation, always count to ten. Make a point to be silent. Make a point to reflect. You may need to indicated that perhaps “I wasn’t clear” or “that maybe I misunderstood” even if you did not. This allows the other party to reframe or to present what was presented in another manner. It may even allow the other party to save face with an offer that was clearly unacceptable to you. You may state something such as “I assume this also includes….” to demonstrate that you find the offer unacceptable as stated, but with certain changes this could be acceptable, or that you may need to help the other party move in a different direction.
4. Asking for help is one of the greatest forms of flattery. By asking for help you are acknowledging to the other party that you recognize their expertise and that you appreciate their opinion. Be careful here. If you ask for help and you do not accept the answer this could cause additional conflict. However, you may not have the right expertise and their demonstration of honest commentary can have an additional positive influence on the negotiations.
5. I have no experience with recommending that both parties voluntarily go to Final-Offer Arbitration. The author suggests this approach with pending lawsuits. I am a negotiator and a mediator. I am concerned that this approach may instead prove to be counterproductive. The other party may perceive this as a threat compared to collaboration. However, I believe a case can be made to suggest that should the facts be presented to a neutral third party, how do you think the facts may be received? This can open the party’s eyes to reflect that their position is not as solid as initially perceived.
I would also like to offer some insights from a study by Randall L. Kiser that indicates the overwhelming perspective of each party is well overplayed compared to the realities of litigation.[i] Comparing actual trial results with rejected pre-trial settlement offers in more than 4,500 cases and 9,000 settlement decisions made during a 44-year period, the study found that 61% of plaintiffs and 21% of defendants obtained an award at trial that was the same or worse than the result that could have been achieved by accepting their opponent’s pre-trial settlement proposal. (That’s 85% of the time) Yet while plaintiffs tend to make more errors in their estimates more frequently, defendants do so with greater severity. When a plaintiff misses the mark, he or she is only off by an average $43,100. The defendant misses less frequently, but the verdict is 26 times the last offer when he does: $1,140,000.
What this tells me is that the parties are ahead of the game to consider these five points brought up in the article by Katie Shock and to work constructively to negotiation professionally for the benefit of all involved rather than to proceed to litigation.
Mike is a manager with over 25 years’ experience at all levels of management. Mike provides services to help clients with conflict resolution on a wide variety of issues. When not serving clients as a consultant, blogging or tweeting, Mike is an avid writer, speaker and educator. When not working Mike enjoys family, church, volunteering, and daily yoga, meditation and exercise.
[i] Randall L. Kiser, et. al, Let’s Not Make A Deal: An Empirical Study Of Decision-Making In Unsuccessful Settlement Negotiations, 5 J. Empirical Legal Studies 551-91 (Sept. 2008), available at http://www3.interscience.wiley.com/cgi-bin/fulltext/121400491/HTMLSTART
About the author
Mike Gregory is a professional speaker, an author, and a mediator. You may contact Mike directly at firstname.lastname@example.org and at (651) 633-5311. Mike has written 12 books (and co-authored two others) including his latest book, The Collaboration Effect: Overcoming Your Conflicts, and The Servant Manager, Business Valuations and the IRS, and Peaceful Resolutions that you may find helpful. [Michael Gregory, ASA, CVA, MBA, Qualified Mediator with the Minnesota Supreme Court]