FALL MEETING 2009
NEW YORK STATE BAR ASSOCIATION
DISPUTE RESOLUTION SECTION
IN CONJUNCTION WITH
 LABOR & EMPLOYMENT LAW SECTION

(The Sagamore Resort, Bolton Landing, New York
October 3, 2009)

NEGOTIATION SKILLS:
Tips on How to Negotiate and Acquire Negotiation Skills

                                                      By:  Simeon H. Baum**

         When asked to address the modest subject of “How to Negotiate and Acquire Negotiation Skills”, I am reminded of the narrator’s comment in Moby Dick:

     “One often hears of writers that rise and swell with their subject, though it may seem just an ordinary one.  How, then, with me, writing of this Leviathan? Unconsciously my chirography expands into placard capitals.  Give me a condor’s quill!  Give me Vesuvius’ crater for an inkstand.  Friends, hold my arms!  For in the mere act of penning my thoughts of this Leviathan, they weary me, and make me faint with their outstretching comprehensiveness of sweep, as if to include the whole circle of the sciences, and all the generations of whales, and men, and mastodons, past, present, and to come, with all the revolving panoramas of empire on earth, and throughout the whole universe, not excluding its suburbs.  Such, and so magnifying, is the virtue of a large and liberal theme!  We expand to its bulk.  To produce a mighty book, you must choose a mighty theme.  No great and enduring volume can ever be written on the flea, though many there be who have tried it.”¹

Hundreds of books have been written on this theme.²  Moreover, all of us go through life negotiating in myriad circumstances.  Thus all of us are experts in this area.  What can one add that is meaningful for a 50 minute program?

         What follows is an effort to capture key ideas and approaches that appear to have nearly universal applicability and to put them into a helpful, simplified framework.  For starters, the simplest format follows and expands upon the advice of the Ancient Greeks: know yourself, know others, know the world.  It then turns Taoist and adds a fourth component, recognizing that Negotiation is very much a process: the Way.

Nosce te ipsum (Know yourself).

         This phrase, inscribed above the entrance to the ancient temple of Apollo at Delphi, captures a core injunction for negotiators. 

         Know Your Interests.

         In their well known negotiation model, Fisher and Ury – and the vast majority of proponents of joint, mutual gains, cooperative bargaining models – suggest that ideal negotiation involves the identification of the interests of each party, a search for options that will best satisfy those interests, and consideration of alternatives to any proposed deal in light of those interests.   At the outset, in order to be effective, a good negotiator must be familiar with the interests that he represents – of himself, his group or his principals.  Before starting any negotiation, it is useful to be clear on what one needs, and to give thought to how best one might satisfy those needs.  “What do we need?  What are we trying to accomplish?” should be expressly asked in advance.  Are we trying to maintain a client base?  Trying to avoid damage to good will or a reputation?  In a labor context, are we trying to stay within budget in light of other material costs; increase productivity; cut down on health costs; improve our risk picture for experience rating by insurers; improve morale?  Knowing the needs can direct the strategy and also can keep one alert to opportunities that might arise in the course of negotiations.

         Keep a Tab on Your Emotions & Inner Life.

         Beyond this, it is vital to be in touch with ones actual feelings, thoughts, and impulses at any point in time.  In “Getting Past No,” Ury advises negotiators not to react to provocative actions or comments by one’s negotiation counterparty.  Reactions can lead to escalation.  They can also cloud chances to learn about the other.  They can kill chances to demonstrate recognition of the needs and feelings of the other, which could have enhanced the quality of communication and relationship, smoothing the bargaining, building trust, and capturing opportunities for mutual gain.  The prerequisite for preventing undue reactions is sufficient self awareness to identify ones emotions and inner responses, including value judgments and the like, before they are given expression.

         Cultivate a Disciplined Self Consciousness. ³

         For all of this, a disciplined self-consciousness is a negotiation treasure.  Part of the discipline, in not reacting, is to know that there is a difference between having a feeling, thought, or even conviction, and acting on it.  Knowing oneself is a first step in keeping the ego under control.

SKILL ACQUISITION:

         Try Mindfulness Meditation.

         How do we develop and increase this type of self knowledge?  There are a range of activities and even exercises that enhance cultivation of self awareness and promote self knowledge.  For nearly a decade, Professor Len Riskin⁴ has been promoting mindfulness meditation as a way not only of reducing stress but also of increasing awareness of one’s inner processes on the theory that this improves capacity as a negotiator or mediator.  Sitting quietly, following the breath, being aware of bodily sensations, letting go particular emotions or thoughts – again, sensing the freedom of awareness without compulsive action – and, with bare attention, gaining a greater sense of presence and the richness of just being are all part of this type of exercise.

         Catalogue Interests.

         In addition, as mentioned above, reflective cataloguing of ones needs and interests in advance of a negotiation, and reconsidering needs and interests throughout the course of the negotiation, puts in the forefront of one’s consciousness matters that should be addressed or that might enable one to seize  opportunities for gain in the bargaining process.

         Observe the Mirror of Others.

         Beyond awareness of one’s impulses, feelings, thoughts, judgments and interests, there is another type of self-understanding, all too often elusive, as expressed by the poet Robert Burns:

“O would some power the giftie gie us to see ourselves as others see us.”⁵

Particularly where one is engaged in negotiation, it is important to observe not only one’s inner workings, sense of self, and recognition of one’s own interests, but also the impact one is making on the other.  How do they see us? 

         Catch Cultural Differences.

         This becomes even more critical in negotiations between members of different cultures.  Lecturers like our own Professor Hal Abramson, on cross cultural understanding in the mediation context, frequently identify such differences as expectations for eye contact.  In certain South American cultures, e.g., eye contact is seen as rude; yet for us, failure to make eye contact might be read as dishonesty, disrespect or a lack of self-confidence.

         Be Alert to Conflict Handling Styles.

         Even without major cross cultural differences, there can be a substantial discrepancy between the way one believes one is behaving and the way others perceive it.  Classic examples are disconnects between people with different styles of handling conflict.  These often are classified in five groups: competitors, compromisers, collaborators, accommodators, and avoiders.  First, knowing one’s own preferred mode of handling conflict can alert one to natural ways of reacting and can liberate one to try out different approaches.  Understanding these modes leads to a better understanding of the negotiating counterparty, and also to an appreciation of how they might be perceiving us. 

SKILL ACQUISITION:

         Test Drive the Thomas-Kilmann Conflict Mode Instrument.

         While we will not have time to administer this test during this 50 minute period, it can be instructive to test oneself using the Thomas-Kilmann Conflict Mode Instrument.⁶  This series of questions takes an inventory of one’s preferred style of handling conflict.  The basic premise is that people vary in the degree to which they seek to assert their own interests even at the expense of others (compete), or to cooperate and promote the interests of others (accommodate).  Some prefer just to avoid conflict altogether, neither asserting their own interest in the particular dispute, nor satisfying the other’s interest.  Others seek a moderated satisfaction of their own interests and those of the other, through the shared sacrifice of compromise.  Yet others maximize the promotion of both their own interests and those of the other – through collaboration.  Despite the apparent preference of negotiation theorists for collaboration – as the way to reach the pareto optimum – the TKCMI advises that each of these modes of handling conflict has its own utility and drawbacks.  It is a fascinating study, worth investigating.

         For our purposes, in addition the knowledge of self and other gained through familiarity with the TKCMI and its principles, there is an added insight into the way people of different mode preferences interact and understand each other.  A classic example is the competitor matched with an avoider.  Competitors like to seal deals.  Avoiders prefer to take time.  The result can often be an odd mix where competitors offer up a series of increasing offers, just to be frustrated by further delays by hesitant avoiders.  Judgments can be added to the mix, with competitors thinking avoiders are not trying or not appreciating their efforts and avoiders thinking competitors are pushy and self-interested.

         Try Being Proactive – Understand One’s Impact

         Awareness of differences in styles and preferences can help with self understanding, as well.  Beyond this, there are a host of behaviors and expressions that can have an impact on others and lead them to perceive us in manner different from the way we perceive ourselves.  To the extent we are seeking to accomplish the goal of building an agreement that maximizes everyone’s interests, we need to encourage the other to feel safe making disclosures about their interests, and to feel it is in their own interest to maximize ours.

Nosce Alius (Know the Other)

         The dance of negotiation by its nature involves partners.  The advice given for self-knowledge above, applies across the board to ones counterparties as well.  Both to prepare for negotiation and throughout the course of negotiations, it is helpful to be alert to what is going on for the party across the table.  What are their interests?  How are they feeling?  What is important to them?  What are their cultural assumptions? What is their conflict style?  What is their context?  What is their sense of self, their hopes, dreams, and aspirations? 

         Only by understanding the interests of the counterparty can a negotiator work to develop options that are going to meet everyone’s needs.  One can learn these interests indirectly, through the application of logic, and through direct communication.  The best way to learn of the other’s interests is from what they say.  The degree of disclosure by the other party will be influenced by the tone at the bargaining table. 

SKILLS ACQUISITION:

         Set a Tone Conducive to Candid Disclosure; Be Effective as an Active Listener.

         Active listening is a buzz word in ADR circles, but for good reason.  Targeted questioning calls for answers to questions we already have, to promote our pre-existing goals.  Active listening, by contrast, is more open-ended.  The other party can drive that conversation. 

         With active listening, we use open ended questions, show recognition of the other party’s feelings, values and perspectives, and acknowledge their worth.  A classic formulation is VECS: validate, empathize, clarify and summarize.

         By this approach, the other party feels less alone and more willing to open up.  This is the royal way to learning their interests.  With that information, one can look for ways to create value in a deal – ways to satisfy the other party’s interests and achieve satisfaction of ones own.

         Communication is Key.

         Even First Amendment case law recognizes that communication occurs not only with words and speech but also in nonverbal ways.  The effective negotiator is alert to, and uses, all forms of communication to advantage.  Body language – the handshake, eye contact, posture, tone of voice – all communicate messages or attitudes.  It is fundamental to communicate in a manner that builds trust and rapport.

         Build Relationship & Trust.

         Understanding that it takes two to tango in deal making and that we must learn what will satisfy the other in order for the other to meet our own needs, nothing goes so far as a relationship of trust to foster disclosure.  To enhance relationship, people from various cultures give gifts or serve food prior to commencing talks, to signal good will and create a common bond.  Shell, in Bargaining for Advantage, tells of an executive who gave his counterparty a gold watch prior to initiating merger talks.⁷ This signaled a valuing of the other and, to paraphrase Claude Rains at the end of Casablanca, “the beginning of a beautiful relationship.”

         Watch for Dynamics of Escalation and De-escalation.

         We have all seen it happen.  An even toned conversation all of a sudden goes out of control.  Tempers flare, people leave the room.  Often these scenarios can be altered if the participants are aware of the factors escalating tensions as they arise.  Points are made, counterpoints asserted, one-upmanship takes place, voice tone changes, expressions change, the pace of speech accelerates.  If one sees this happening, there is no loss in taking a break, changing tone, slowing things down.  Much can be said for the pause that refreshes.  Silence is a gift.

         Control the Spigot of Disclosure. 

         At the heart of communications in negotiation is the flow of information.  This can range from communicating ones own interests, eliciting and confirming the interest of the other, learning about context, developing principles for fair resolutions, exchanging offers, discussing alternatives, assessing and evaluating legal options and even possible litigation outcomes.

         There is a balance in disclosure.  Social scientists have observed that disclosure by one party encourages disclosure by the other; and the opposite is true as well.  It pays to be clear in advance of what are one’s confidential facts, interests, concerns and analyses, and also of what one would like to learn from the other.  These views should be revisited throughout the negotiation. 

Disclosure Choices are Informed by Competitive or Cooperative Strategy and Behavior.

         In short, be artful in striking the delicate balance in disclosure.  Share where possible, both to encourage sharing and also to enable one’s counterparty to help think of options that might meet one’s own needs.  But be judicious as well, on disclosure of one’s own weak points, points that give the other party leverage, feelings that might provoke, and arguments that might lead to escalation or corrective action shoring up the other party’s position.

         The fundamental difficulty entangled in the preceding consideration is the question of whether to engage in strategic behavior that is competitive or cooperative.  Current negotiation theory has shown the greater advantages that can be gained by cooperative behavior.  Only cooperation can enable both parties to learn and work together to meet the interests of all, and to maximize gain.  A legitimate cause for hesitation in proceeding down the cooperative path is the view that one’s counterparty is motivated by a purely competitive strategy or driven by ill will.  The bind implicit in this assessment is that ill will or competitive approaches might change if one takes a risk and extends the olive branch.  It takes courage and the ability to take a short term loss to make this long term advance.

         There is no ultimate solution to this problem.  In each instance one uses one’s best judgment.  But it pays to be aware of this set of choices and of the way the exercise by one party of choices to follow a competitive or cooperative strategy can itself be transformative for all parties.

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