Perhaps no skill is more valuable for attorneys than the ability to negotiate well. Whether one is concluding a commercial or corporate agreement, resolving disputes over defects or patents, or reaching a deal with a client or colleague, strong negotiation skills will always come in handy. Here are 10 tips to consider.
1. Collabortive v. Competitive. In a collaborative approach the parties seek a win-win solution through cooperation, sharing information and creative problem-solving. A competitive or win-lose approach, involves threats, manipulation and withholding of information. Collaboration is usually preferable, particularly if the parties are present or potential business partners, but sometimes a competitive approach may be appropriate.
2. Assess the Issues Beforehand. Before commencing negotiations, list your issues and your counterpart’s issues and prioritize them. Are some issues linked? Can or should they be linked? What areas of common ground exist? What concessions might be available for each side? What are some reasonable proposals? How badly does each side need an agreement?
3. Prepare Evidence and Strategy Beforehand. Compile a chronology of offers and counter-offers for reference. Gather evidence supporting your claims and attacking theirs. Consider the order of discussion (eg., easy to hard, hard to easy) and how to open the session. Consider strategies (eg., good cop/bad cop). Prepare an agenda and send it to the counterpart for discussion.
4. Assess your Best Alternative to Negotiated Settlement (BATNA). If litigation is the alternative, what is the estimated timing and cost? What are your odds of success? Use BATNA to set your threshold for settlement. Assess your counterpart’s BATNA. Try to settle close to their BATNA and during negotiations try to convince them their BATNA is worse than they thought.
5. Plan the Timing and Location. Avoid spontaneous negotiations. Instead, can you create incentive for them to settle, or patiently draw them to the table? As for location, there are advantages to negotiating at your company. You may feel more comfortable and in control; you can arrange seating and other arrangements to your liking; you may have access to information, documents and support; and you will have greater control over breaks and interruptions. On the other hand, you may not want them to see your fancy office or assess your workplace and you may prefer an excuse to not have access to additional information.
6. Who will attend the Negotiation? Ask your counterpart to identify participants in advance. Investigate their education, experience, background and prior negotiations. How did they behave? What results did they get? If you want the matter to settle, confirm that both sides’ participants will have authority to settle.
7. Open with a Positive Approach. Regardless of differences, to work towards mutual agreement it is usually best to try to establish an atmosphere of trust, by greeting your adversary in a friendly manner, engage in standard small talk, seek basic common ground and avoid threatening speech or conduct. Pay little attention to initial demands, as they tend to be extreme. Instead, move forward calmly and methodically.
8. Stay Calm. Don’t act eager, excited or impressed. Avoid anger or provocative words or gestures and don’t focus on the past or on blaming the other. Instead, listen carefully to your counterpart, avoid making assumptions or finishing his sentences, but remain silent and allow him to speak. Watch his eyes and show interest in his concerns and in reaching a mutually agreeable solution.
9. Making Proposals. Avoid making the first offer and when you make a first offer avoid being too extreme, as it will likely result in just frustration and delay. Establish common goals and explain why your objectives are important. Consider making conditional offers (“if you agree to X, we might consider Y”). Consider cutting to the chase (“Let’s get to the point. What can you offer?”). Search for ways to cut large issues into smaller pieces, to link issues and find win-win solutions. Save small concessions (preferably cheap to give but valuable to receive) to offer when agreement seems close.
10. Closing the Session. Consider setting a reasonable deadline up front (eg., 5:00 pm), but avoid threatening to withdraw early except in the case of clearly abusive language or conduct. If an agreement is reached, be sure to have both sides sign a writing on the spot, even if it’s just a handwritten MOU or Term Sheet to be followed by the formal agreement. If no agreement is reached, send an email afterwards, summarizing the issues and positions, to facilitate progress in the future.
Best of luck to you. Please share any tips of your own.
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