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Negotiation for Attorneys - Strategies & Tactics

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Negotiation for Attorneys - Strategies & Tactics

This one hour module provides an overview of negotiation fundamentals and explores strategies and techniques for attorneys who routinely engage in negotiations on behalf of private clients, corporate organizations, or administrative agencies. In addition to suggesting best preparation practices, the presenter will discuss other factors that should be taken into consideration including, but not limited to, communication styles, intangible influences, behind-the-table negotiations, cross-cultural factors, and negotiating in unstable contexts (such as a pandemic).


Jo Colbert Stanley
Managing Member
Stanley Legal Services


Jill Colbert Stanley - Hello, my name is Jill Colbert Stanley. And today we're gonna be talking about negotiation strategies and tactics.


This module provides an overview of negotiation fundamentals. And explores strategies and techniques for attorneys who routinely engage in negotiations on behalf of private clients, corporate organizations, or administrative agencies. In addition to suggesting best preparation practices, we'll discuss other factors that should be taken into consideration. Including but not limited to, communication styles, intangible influences, behind the table negotiations, cross-cultural factors. And negotiating in unstable contexts, such as for example, a pandemic. In thinking about negotiation strategies and tactics, there are some preliminary considerations. For example, we'll want to think about what type of dispute or contract we are dealing with. That will determine and be informative towards what type of tactics or strategies you might want to employ. Cognitive biases are also important to take into consideration, and we'll discuss that in a little bit more detail. Along with conflict styles and communication styles, again, can affect how you approach a negotiation. And the way you handle situations during the actual negotiation procedures. We'll also talk a little bit about cross-cultural considerations.


Now your gut instinct, probably right away, tells you that how negotiate, how you act, how you speak, how you carry yourself, will be affected by the type of negotiation you're entering into. For example, between contractual or interpersonal negotiations, you would probably have a different demeanor or even tone of voice. Even within contractual negotiations, if you look at commercial contracts versus personal contracts. Again, it could affect your style, your strategies and your tactics as you are negotiating. Same is true if we look at domestic or familial contracts. We all know the negotiations that may be included around readings of wills, for example, or divorces. Organizational negotiations and global negotiations all call for different types of approaches and strategies for handling them. Now let's talk a little bit about cognitive biases.


As negotiation experts and scholars, Roy Lewicki, David Saunders and Bruce Barry point out, during the course of a negotiation, we process and receive and filter and even distort the information that's coming to us. Now Lewicki et al. point out 12 cognitive biases. Now Lewicki et al. point out 12 cognitive biases. And we'll go through them quickly here, just to give you an idea of what to be on the lookout for within yourself. And to be aware of, maybe impacting the person across the table. So we have escalation of commitment, which Lewicki et al. define as the tendency for an individual to make decisions that persist in pursuing a failing course of action. In common day parlance, we call that throwing good money after bad. The fixed pie myth, that's where the parties are dead set on a specific amount of distribution or allocation of the resources over which they are negotiating. So these individuals see the negotiation as a zero sum or win/lose situation. The anchoring and adjustment bias is being overly influenced by a standard or reference point, an anchor, and failing to make adjustments from it, according to Lewicki, Saunders and Barry. In addition, this is an inflexible negotiation style when your cognitive bias makes you stand fast at a certain point.


Other cognitive biases include framing errors or information bias. And one of my favorites, the winner's curse. This one really is about the tendency to settle quickly on an outcome. And then feel discomfort about a negotiation win that comes too easily. That's according to Lewicki, Saunders and Barry. And that's where you think that it's too good to be true. And as a result, that bias impedes your ability to continue in the negotiations. Some of the others that are pointed out by the authors I'm citing here include overconfidence, the law of small numbers, self-serving biases, the endowment effect, lack of awareness and reactive devaluation. So that last one meaning placing less value on concessions made by the other, simply because the other party offered them. So if you want to read more about cognitive biases, I strongly recommend 'The Essentials of Negotiation' by Roy Lewicki, David Saunders and Bruce Barry. A great a textbook for anyone interested in learning more about negotiation strategies and tactics.


So something else to consider, as we said at the outset, are conflict styles. Now when we're talking about conflict styles, we are really referencing the group of mannerisms or behaviors or responses that people typically use when they are facing a conflict. We normally speak of five styles, avoiding, dominating, compromising, obliging and integrating. And typically, these styles develop as we're growing up in reaction to different things that happen around us. Or even modeling from our parents or other people that we may respect or take after. When we talk about the avoiding style of conflict, that's characterized by a denial of the conflict. Like changing and avoiding the topic, or deflecting we call it. Or being non-committal and joking all the time. And you'll meet these individuals, even in negotiations at high levels, who are still not quite comfortable with the notion of having to haggle over something. Or bargain with strangers or other professionals. The communication strategies associated with this type of conflict style is include not speaking. They remain quiet or they'll say they don't have an opinion, or whatever you think is fine with me.


Again as we said, they'll deflect, they'll change the topic. They'll supply irrelevant information about something completely different than the actual thing you're negotiating over. They'll smile and laugh and try to change the mood. Now there may be any number of reasons why avoiding conflict may be an individual's default setting. But from a negotiation standpoint, it's important to recognize so that you don't make the mistake of thinking because someone's avoiding direct aggression, or conflict as they may see it. You just think they're dodging and not answering questions. And recognizing that this may just be their conflict style might help you avoid one of your cognitive biases of, as we called it, the framing error. And taking their behavior as a negative and derailing the negotiations. The second conflict style, we call dominating or competing. And you'll recognize those individuals who are more assertive or even aggressive in their approach to the negotiations. The important thing to recognize here is that while that might be their style, probably in the negotiation context, you don't want to mirror that approach and derail the negotiations. So to avoid derailing negotiations, some might opt for a third conflict style called compromising. Here the parties are in a, what we call, intermediate style, which results in some gains and some losses on either side. It's fairly assertive, but yet cooperative.


Another conflict style, obliging, is one that is not often present at a negotiation table. After all, if everyone was just obliging, there wouldn't be anything to negotiate over half the time because one party would just give in to the other party's demands. When you do run into an obliging party in a negotiation however, you may to be wary of what we'd call hostile compliance. Where they're simply giving in, but they're doing so begrudgingly and bitterly. And if, for example, this is a multi-component or multifaceted negotiation and they've given in or conceded to something but is done in a hostile or begrudging manner. This could derail the larger negotiations or other modules within the negotiation. So it goes without saying that the favored conflict style is the integrating style. Where the parties have a high concern for their own personal or organizational goals, but also a high concern for the continued relationship. And for the other side's interests and goals.


Here there's more of a collaboration, more constructive engagement. And negotiations obviously go a lot more smoothly. If the individuals have this type of conflict style, you'll hear communication such as, I wanna sure this works for both of us. Or let's each lay out our concerns and then figure out how to address them. So as we've been alluding, conflict styles and communication styles are fairly intertwined. Recognizing and correlating conflict and communication styles helps you, as a negotiator, mirror or match the style that the other person would be more likely to receive or hear or filter in a way that is helpful to the desired outcome for your negotiation. It's also important for yourself to develop an ability to switch between the styles as needed, to further the negotiation process. So that's to say that during the course of a negotiation, you may switch between a dominating or a competitive stance or style. To a compromising or even obliging frame of reference, if you will, for handling the negotiations. So to learn more I recommend 'Interpersonal Conflict,' the book by William Wilmot, for your reading pleasure.


And so briefly, one of the final things we said we would look at as a preliminary consideration are cross-cultural factors. Culture meaning shared values, beliefs, and behaviors of any given group of individuals. These cultural identities, if you will, lead to conflict styles and communication styles, therefore negotiation style differences, between cultures. And as a result, individuals engage in negotiations with those cultural filters in place. And it behooves again, the negotiator, the key negotiator, to be aware of the possibility and the impact of the cultural filter at any given point in time. And when we're talking about culture, we're not just talking about, you may think of ethnic or racial or religious or any number of global identifiable cultures.


But you also want to look at the impact of subcultures. So negotiations with a police union, for example, may go completely differently than negotiations with another group that shares the same values, beliefs and behavior patterns. Negotiations with a nurse's union, for example, might have a completely different way of approaching the engaging, I should say, in the negotiation. And also in the process of negotiations and taking into account cultural filters, you will notice that certain items of the negotiation may have a different impact or be way more important to one culture than it is to another. And again, using the awareness of the possible or potential influence or filtering that the other party's cultural background may bring to the table is important for you as a negotiator. So when we're talking about strategies and tactics, the only thing we're making a distinction between the two words really is strategy. Thinking of a longterm goal or over a broad frame of reference to achieve a goal, a certain set of plans. The tactics would be those devices or the method of achieving or executing, if you will, the overall overarching plan. So we're looking at not just the long range planning you would do for an upcoming negotiation, but also the tactics in the moment that you might want to consider employing, depending on your selected strategy.


So what are the best strategies and tactics for negotiating? We'll look at what we can call the top 10, according to our friendly negotiation scholars and authors that we've been talking about, Roy Lewicki, David Saunders and Bruce Barry. And we look at the list that we've got here. And if you can remember or engage even one of these practices, it will help you in your very next negotiation. So just to list them. The top 10 best practices are, one, be prepared. Diagnose the fundamentals. Identify and work the BATNA, then we'll talk about what that means. Be willing to walk away. Master the key paradoxes. Remember the intangibles. Actively manage coalitions. Protect and serve your reputation. Remember, rationality and fairness are relative. And finally, learn from your experiences and other resources. Okay so preparation is, of course, the key to any dispute resolution mechanism. Whether it's litigation, mediation, arbitration, or negotiation. Whatever you are doing to resolve or further compromise in settlements, you need to engage in some solid work upfront. We start out, and we can all agree, knowledge is power, right? Certainly do your research to learn what your counterpart is like. Everyone has a reputation. And remember, you don't want to be blindsided by your own client either. Get know your client, including their propensity to say, be stubborn and inflexible. Or on the other end of that spectrum, early cavers. Or what kinds of things trigger them? Assume you're representing an individual, what are the emotional blockades that might come up? Again, look for those communication styles if possible. And also, it's important to know yourself. Same considerations, are you a soft touch? Are you laser-focused, and maybe don't feel empowered to be flexible? Do you start to raise your voice or stutter when things aren't going your way? You're looking for tells. You can even take, there's an emotional intelligence test, the EQ test, to assess yourself before you move on.


So when you've done your research on the other side and gotten to know their point of view as thoroughly as you know your own, you should you be able to anticipate what benefits they and your client can derive from reaching a negotiated agreement. This will help you figure out the so-called BATNA, which again, we will discuss that in a little bit more detail shortly. So you'll want to look at maybe writing down the interests that you have or that your client has, and what their interests are and just make a list. Then you'll want to make a list of what your options are. And what standards are you using to determine whether or not it's a good deal? Or any components, you want objective standards. Is that the bear market value for whatever the commodity is? Those types of things. And then you want to look at what proposals you really aspire to, what outcome you aspire to, what you would be content with, what you could live with. And also, you wanna make sure that you know what is your walkaway point. And again, we'll go over that. This is all about getting prepared, figuring out beforehand, interests, options, standards, the BATNA, best alternative to negotiated agreement. And whatever proposals you're willing to bring, and willing to accept or not.


Another vital part of your preparation involves figuring out the sweet spot for your opening offer. Should you make it first or wait? How high or how low? Remember, coming out the gate with an inflated ask isn't necessarily a good idea. In fact, research indicates that you usually end up with a worse outcome than if you start out with an aspirational, but reasonable request. This is because outrageous initial demands or counter offers can ruin your credibility, erode trust and trigger suspicion. It shuts down open dialogue. And will turn the negotiations into a competition, as opposed to an exploration of mutually beneficial outcomes. So opening offer should have a rational basis, like tied to likely trial outcomes or something. And it should be seen to confer a benefit to the other side, even if it's simply to put an end to litigation. So good upfront preparation will help you understand your own goals and interests, understand the benefit of making concessions and what kind and when.


So like I said, even if you don't put pen to paper and actually do a preparation worksheet. But I recommend that you do sit down and write something out, it really is helpful. But just heightening your awareness to each of these ideas will help you out. Another important habit to acquire as a strong negotiator, and it's a practice I think gets overlooked quite a bit, is to make sure you appreciate the key fundamentals of the negotiation. In other words, what type of negotiation are you even dealing with? That can and should affect everything about your selected strategy and what tactics you employ.


Negotiations usually happen for one of three reasons, right? One, to agree on how to divvy up a finite or a limited resource such as land or money or time. And two, to create something new that neither party could do on her own. Or three, to resolve a dispute or a conflict between the parties. So sometimes people don't negotiate because they fail to see it's a negotiable situation. Everything is negotiable, I'm often told. And sometimes we all see that, right? Even for things that might seem non-negotiable, we get for example, deadline extensions from hardcore judges and opposing counsel, for example. It's said that those of us in Western cultures don't negotiate enough. We take sticker price at face value literally, and never even think about negotiating. So there are two types of negotiation overall and in fact, many can be blended. We talk about distributive negotiations and those are the ones that deal with the allocation of resources. Who's getting how big of a slice of pie? Integrative negotiations, on the other hand, are those where the parties are attempting to blend their resources or maybe skills to create something new. The point is each type suggests different tactics and strategies.


The reason it's important to sniff out the fundamentals is you use different strategies and different tactics, depending on the type of negotiation you're engaged in. So you don't wanna bring a hammer when what you need is a feather. Make sure you've brought the right tool to the table. In a distributive negotiation, you might see so-called hard, excuse me, hardball tactics. And these, I think, are self-explanatory. Like intimidation and aggression, bluffing or low balling or high balling, for example. Or what we call the bogie, where you pretend the issue's of little and importance to you. Or nibbling for additional concessions, after the main issue has been agreed upon. Or even hiding information. In integrative negotiations on the other hand, where you're trying to create a win-win outcome, you'll need to set aside competitive or adversarial negotiation tactics and conflict styles or communication styles. You almost need to engage a mediator or facilitator style or tactics. You'll focus on finding common ground. You'll do more joint brainstorming, trust building, more information sharing. You'll want to be more transparent. So if you are using integrative tactics in a distributive negotiation setting, you will achieve suboptimal results and vice versa.


For instance, if you're really negotiating with building contractors and they agree to cut their cost by 10% if a say, mask mandate is dropped. I'm making this up out of thin air. And you weren't ever planning to enforce the mask mandate, you just wanted a lower price, it wouldn't necessarily behoove you to be quite so transparent and reveal that. However, say you're renegotiating the salary of someone and you really need this person to sign on for another year of work. Because they're the only ones who speak Swahili and they really need the job because their H-1B visa is tied to your organization. Well, what type of tactics would you engage in? You need each other. Are you gonna be all horrible when you're negotiating the new terms? I think you get the point. Know what you're dealing with. Don't treat every negotiation as the same type. And do notice when they're blended, so you can pivot and switch tactics. In blended situations, integrative potential may be overlooked if you're busy engaging distributive tactics.


Okay, so you've heard me say the word or acronym more than once now, BATNA. BATNA, BATNA, BATNA is a key, key, key, best practice of course, in any negotiation is identifying and working with this best alternative to negotiated agreement. If you haven't heard it before, this is an acronym from a phrase coined by William Ury and Roger Fisher, which stands for your best alternative to negotiated agreement. Some authors have subsequently coined the term WATNA for worst alternative to negotiated agreement. But I kind of think they go hand in hand really. So what is your BATNA in any given negotiations? If you don't come to terms, what's the next best thing? What's the worst that could happen, from your client's perspective? Do a reality check to test. Like if we don't settle this today, if we can't negotiate a settlement today, what's the outcome? What's the worst case scenario? From the other side's perspective, you want to try to figure out what our best alternative is as well. And this will require you to do some research, or maybe share knowledge with one another. And then from your personal perspective, as a professional engaged in negotiations on behalf of clients, you may have performance metrics that you're concerned about. Maybe your ego, who knows?


So with your client's perspective, you also may need to do some reality checking, as we said. You may need to say, look, that's not what happens if we don't get an agreement here today. As we know, some clients may be naive in their expectations. And as attorneys, it's your job to counsel them. And if you've done your homework, you might have a good idea of the other side's BATNA or WATNA. By the way, don't just rely on Westlaw or Lexis for research, especially researching background for negotiations. Google and newspaper sources and even social media, your friends, if you want to know your opponent. And like I said, check your own. Make sure that you're not driving the negotiations based off of your own personal goals and interests. If by any chance you can improve your BATNA before negotiations even start, then you will have more leverage at the negotiation table. Even when it seems there's no benefit, like any single supplier relationship, the weaker side can allude to projected improvements to cancel out the power of the supplier. For example, modifications to offset price fluctuations. In an example like the one I gave earlier with the building contractors and their masks, maybe you suggest that you have other contractors willing to wear masks. A simple concept, right? Whether that's true or not is an ethical issue. And some argue there's no room for ethics in real negotiations, but I leave that debate for another day.


Even where there's a perceived lack of leverage, you may uncover hidden potential bargaining chips in the intangibles. Publicity is a big one. Avoiding bad publicity, improving consumer or customer goodwill with positive publicity. So monitor the other side's BATNA carefully. Do your research, remind the other of the advantages your offer has in comparison to their BATNA. Subtly suggest that their BATNA is not as strong as they think, by stressing the strengths of your offer. Or by highlighting the weakness of what they're likely to face in the absence of a negotiated agreement. So now you know all about BATNA. So tied to the concept of BATNA, of course, is the walkaway point idea. And some of you may remember Kenny Rogers, I don't know. But he was a famous singer and one of his songs, 'The Gambler' advises us to know when to walk away, know when to run. So the bottom line is the goal of any negotiation should be to reach a valued outcome, valued outcome. Not just reach an agreement, any agreement will do. Remember that sometimes no agreement is better than a bad one. Or if the talks have become, say, offensive, and it's not worth the work or you don't trust the other side, for example, you have to be willing to walk away. So you want to figure out your walkaway point. I mean, this could be like my father-in-law's walking away point was when they included dealer fees at the car dealership. He'd get up and leave the showroom, every time. And it worked every time. The man never paid a fee he didn't like, but I digress. The key to walkaway points is to continually check your progress in the negotiations. Check against your initial target, your walkaway point and your BATNA. Keep your eye on the prize and don't get bogged down in the competition. Don't get so bogged down in the fight that you forget what you're fighting for. A good outcome, not just any agreement. In team negotiations, maybe have one member assigned to monitor the walkaway point and be responsible for stopping the negotiation if final settlement isn't likely. Call that a designated driver of the walkaway, to mix up all the metaphors. And don't say you're going to walk away just for the sake of being dramatic. Don't be the boy who cried wolf. Be gracious and sincere if the time comes, don't be petulant.


So we mentioned at the outset, that one of the 10 best practices was balancing key paradoxes. What do we mean by that? What's a paradox? Well when seemingly opposite things occur, or can occur at the same time, that's kind of a paradox. I like to say it's contemporaneous contradictions. The key in negotiations is to try and find a balance between the two apparently polar opposite concepts. For example, while you want to claim value in a negotiation, that is to assert how much of the pie you're entitled to. Many negotiations also have a value creation stage, where you can work with your opponent to increase the pie. To increase the resources you're contemplating. You'll need to be alert to when those two stages flip, and adjust your tactics. So the paradox there is the claiming value and the creating value, both of which can happen at the same time in the same negotiation. So if we all say we want the orange, but you only want the peel and I only really want the juice. If we're paying attention to the paradox there, we can recognize when we've stopped fighting over each other's claimed value of the resource. To where we are discussing how to fairly divvy it up. But if we don't pay attention and we keep fighting over the whole orange, no one gets anything.


Other paradoxes in negotiation strategy and tactics are sticking by your principles, versus being resilient enough to go with the flow. This is cousins with sticking with your strategy, versus recognizing the opportunities of new options and pursuing them. You need to stay light on your feet when you're negotiating. You might be in the trenches but you shouldn't be entrenched, get it? Don't get bogged down. Then the other paradox cousins would be how to balance being too honest and open or transparent, against being too closed and opaque. Similar being too trusting versus too distrusting. You can see how you need to walk the wire between these two stances. But trust your instincts, all right. Check yourself and then go with your gut. The key here, as with everything we're saying today, is awareness. Asking yourself, am I being too cynical? Would more vulnerability and transparency actually work in my favor here? That's when you're looking at and balancing the paradoxes. So the next best practice is to remember the intangibles. This speaks for itself, especially if you've seen the movie 'Titanic.' The intangible being the lower two thirds of that iceberg.


Okay listen, the intangibles, not to be confused with the untouchables, that's a different movie, can make or break a negotiation. So be on the lookout for them. But how do you spot something that's not necessarily visible? So what you're gonna do is you wanna look for unexplained or seemingly irrational, perhaps, changes in behavior or tactics. Like if you've had cases with this client or attorney before, are they acting weird? Are they being more heavy handed for no reason? Are they banging on and on about a particular seemingly trivial issue? Are their emotions exaggerated? If you notice those things, good for you, you're paying attention. If you notice those things, you can certainly address them or modify your own approach. You can simply ask, why is it so important that this sewer line contract be finalized before March 17th? We usually allow three full months to flesh out the details. Is there something I need to know about this particular contract or deadline?


An open ended question coming from a place of genuine curiosity. You might find out, for example, the underlying subcontractor agreement is being negotiated and has its own looming deadline. Which might give you leverage or, at the very least, help explain the other side's pressure. Sometimes it's hard to notice the intangible stuff because well, aside from the fact that they are by definition, not obvious, we ourselves are so caught up in getting the outcome we want, we're not paying attention. So if you can, again, maybe bring an associate with you. Let them observe, also check your own intangibles. See what's got you triggered today. Why are you in such a rush to get out of here? I'm sure you can think of numerous reasons sometimes when we're more anxious or aggressive in certain cases. So make sure your own intangibles aren't clouding your judgment or your performance. So one thing that could influence you, or I guess another intangible, could be coalition driven. This is another one of the best practices we talked about of managing coalitions. Negotiations are frequently sort of bargaining by committee. You've got your team on your side. You've obviously got the opposing team, but sometimes the outcome is decided by another team altogether.


Well the point is you should always consider who's not at the negotiation table, that might be influencing the proceedings. We see this a lot in mediations, where the adjuster leaves the room to call the real boss with the authority. Or in less formal settings where, for example, a worker can't commit to travel to an out of town deposition because it depends on whether their kid's soccer team makes the playoffs. Who's really driving the outcome? So we talk about shadow negotiations or behind the table bargaining. Or if we're talking about my dog at dinner, it's under the table campaigning. But the best practice for coalition management is probably communication. Trying to find out upfront, who's really influencing the negotiations? There's types of influential coalitions include, like I said, those who are for you, those who are against you. And then the unknown ones that may materialize during the talks. Dealing with coalitions, once you've identified them, you may employ a divide and conquer strategy. Where you can separate the shadow negotiators from the ones who are actually at the table. So a peripheral manipulation, if you know who you're really dealing with. So communicate and be proactive. If you know the outcome will be decided by external parties, then maybe you want to focus your strategy on those external parties to get the negotiations moving along smoothly. Another essential important practice for negotiators is to protect your reputation.


Suffice it to say, your reputation precedes you. Be aware of that. I personally think this is really where ethics comes in to play during negotiations. Because if you develop a reputation for being underhanded or always hiding the ball, for instance, then you'll face opponents who are wary of fair dealing or bargaining in good faith with you. It's not ideal if you're trying to avoid a trial or impasse in union contract negotiations, by the way. You wanna try to think about how others perceive you. Ask for feedback even. Think about negotiators or lawyers you respect and ask yourself, why? And what do you need to do to emulate them or develop a similar reputation? It might take a while to earn a solid reputation as a negotiator, but it can easily be ruined. So savor yours and protect it at all costs. So we're coming to the end of the top 10 list of best practices for negotiations.


And we want to remember, it's all relative or subjective. This is an important practice. That is, what you perceive as a fair or rational contract term or a mediated agreement provision isn't necessarily perceived the same way across the table. Remember we talked about different cultures before, for example. The best practice key here is to try and establish an objective standard among the parties. For instance, if you were, as we mentioned earlier, negotiating the price of a building, you could bargain around the objectively set fair market value. Obviously in many legal contexts, there's no readily available fair market value for things. But that's the concept we're trying to evoke when we say strive for an external objective standard. You can define it together at the beginning of the negotiations.


 For example, can we both agree the goal is 100% compliance by June 15th? Right okay, now let's talk about how much overtime needs to be authorized for that. And what's fair in terms of staffing? The point is, you have an objective agreed upon goal or standard. Now you're not arguing about that being irrational or unrealistic or even unfair. So again, communication is key. And as always check yourself, are you really being fair and rational? So remember, just accept that worldviews of fairness and rationality vary. Explore your own perceptions. Try to uncover the other side's perception of fairness and seek that consensus on standards. There's a saying that all's fair in love and war. Well, I'll add that all's relatively fair when it comes to negotiations.


So we'll step aside from the top 10 list from Lewicki that we've been going through. And I want to address how to overcome dreaded or looming impasses. I think it's important obviously and it fits in here, in the timeline we're sort of going through in terms of preparing for negotiations. And what to do while they're happening, what to be on the lookout for. Well what to do when it looks like all that preparation and self-assessment and navigation of intangibles, and coalition management and relative rationality testing. What to do when it looks like all of that has failed. And you're facing an impasse. How do you break through that blockade that's up? Here, we'll look at five steps. And these come to us from William Ury. And the first step he calls going to the balcony, or go to the balcony, which is basically to take a timeout. You can't control the other side's behavior. You can only control your own. So say the other side launches into some hardball aggressive tactics. They're yelling and pounding the table. Don't react, respond, say to yourself, self, they're engaging in hardball aggressive tactics. I'm going to the balcony. Now this can be a literal timeout, like physically leaving the room. Going to caucus if you're in a mediation, for example. Or if you're negotiating via email, writing back and saying, give me 48 hours and I'll get back to you.


This is when you're going to remind yourself, during this timeout, you're going to remind yourself of your BATNA. You're gonna calm your emotions. You're gonna protect your reputation. Have a cigarette. Wait, do people still smoke? I don't know. Whatever it takes, the point is to calm down and let rationality, objective rationality take control. Sometimes the timeout might be enough to make the other side rethink their stance, because they've gotten a taste of your walkaway point. So remember, step one, when faced with a looming impasse, go to the balcony, take a timeout. Step two of our breaking through in five steps, step to their side. So step two is step to their side. Remember, now that they've told you at this point, no way we're agreeing to that. They're expecting you to fight back, and for you to be resistant or go into attack mode. So surprise them, engage in curious inquiry. Ask open ended questions, acknowledge their concerns. Agree and concede where you can. Step three, reframe. Stop fighting the person and fight the problem, and invite your opponent to join you. You both want a good outcome, but you both have a problem. So try to refrain it, reframe it, excuse me, as a joint obstacle. Ask for their advice, as if they were in your shoes. Step four, so what Ury refers to as building a golden bridge. By that, we mean give them a way to come to your side. Remember for whatever reason, some negotiators are more concerned with saving face or looking good in front of their clients. So help them, help them give you what you want while looking like they won. You can do this by, again, conceding where you can and making a big deal of it by acknowledging their Herculean efforts and fairness in working with you for such long hours. Build them up, invite them to your side. Because after all, in step two above, you remember you step to theirs. So you've softened them up a bit for some reciprocation. And step five of breaking through a looming impasse is to educate your adversary. If all else fails, you need to educate your opponent that they can't win without negotiating. I don't recommend using threats or being excessively forceful here. But you can point out the cost to them if they don't negotiate. Maybe they're not as aware of their BATNA as they should be.


Don't escalate tension here, but definitely don't be afraid to put your preparation and advanced research to good use. So you say, well all of this is well and good, but now do it in a global pandemic. And I hear you, I do. How do you deal with anything or anyone when the world is in utter chaos? Everyone's perspectives have morphed. Expectations are pointless because forecasts are unreliable. So how do you plan anything or navigate negotiations through a perpetual storm or unstable times? So again, remembering the difference between strategy and tactics. Strategy being the long view. In turbulent or difficult times, you need to negotiate strategically with a broader view, big picture. You need to plan ahead a lot. You see, in the negotiation context of a stable setting, the parties usually have mutually shared rules of engagement and established enforcement mechanisms. If negotiations fail, like motions to compel or subpoenas in trials. But say, for example, in the third year of a pandemic, a global pandemic, we're still in an unstable context. Meaning life is messy. Ideas of what's important, what's fair, what's worth fighting for and so forth have changed. So how do you negotiate, for example, employment contracts when the employees don't care if you retain them or not? Your strategy, so here you have to come up with... Name the source of the instability, whatever it is. Here, we've been using the pandemic. But it may be something else. It may be fuel price fluctuations or something unique to the industry within which you're negotiating. So you name the source of the instability. You acknowledge the impact on everyone. Out loud and in shared communications, you acknowledge that impact on both sides. Acknowledge you have to deal with others not at the table. Remember we talked about behind the table and shadow negotiations. It has to be a deliberate and overt inclusion of shadow parties not necessarily at the table. So constituents and other stakeholders that haven't shown up to the negotiations should be included. And be realistic about how and when you can deal with or incorporate their input.


You wanna plan ahead for policy implementation. For example, in some instances, you may need to involve the public in what would otherwise be more closed negotiations. But when the context or the settings are unstable, the scope of influence may broaden or become a little more amorphous. And of course be transparent where you can and balance withholding information to only that necessary. Remember people, the parties, your stakeholders are on edge when it's an unstable time or turbulent time. So what they'll need from you as their principle negotiator or attorney would be to trust you and at least feel your approach is a source of confidence or stability. And finally, build in resiliency. Build in mechanisms for returning to the negotiation table, if necessary. So, back to the top 10 list that we have been discussing. What is the final best practice for improved negotiation strategies and tactics? Well, you've been doing it this whole time. It's learning, continued learning. Learn from your experiences.


As I said at the outset, if you took away even one nugget of information, whether it's new information or remembered information or emphasized information, you've been practicing this last of the top 10. Learning is fundamental. Take advantage of all the resources on the web, et cetera. And you can even track your own negotiations with a journal, for example, to see what types of negotiations worked best with what style, what tactic. As I say, and as in everything, self-reflection is the key. Awareness is very important. You will want to look at, as we mentioned earlier, your emotional intelligence, which basically comes down to your self-awareness, your self-management, your social awareness and social management. Those four components. You'll wanna evaluate your triggers and responses so that you are prepared against your own, perhaps, knee-jerk reflexive responses during the negotiations. And as I said, taking notes and journaling may seem like added work. Like we talked about writing down a list for your preparations. However, it's useful, especially if you're keeping track of the parties who you've negotiated on behalf of. Or the opposing counsel, or adjusters or other stakeholders who may not actually show up. But you will have a memory or in some way memorialize, as I said, your track record so that you can sort of shorten your game. And know what type of approaches, what types of communication styles, what types of conflict styles. And that will also help you keep track of the intangibles we mentioned, where someone's behavior may be different in this negotiation than they had been in previous ones with you. So to summarize, today we've looked at negotiation strategies and tactics. We said some preliminary considerations are, what type of negotiation disputes or contract are you working under? Your cognitive biases, conflict and communication styles. And, of course, cross cultural considerations.


And then we looked at the 10 best practices according to Lewicki et al. And I'll just read those for your convenience here. Number one, be prepared. Number two, diagnose the fundamentals of the negotiation. Number three, identify and work the BATNA. Number four, be willing to walk away. Number five, master the key paradoxes. Number six, remember the intangibles. Number seven, actively manage coalitions. Number eight, protect and serve your reputation. Number nine, remember rationality and fairness are relative. And number 10, learn from your experiences and other resources. So thank you for listening, I hope this information has provided some insight for you. You will see a list of recommended reading and references that were used for today's presentation. And including 'Negotiation Bootcamp: How to Resolve Conflict, Satisfy Customers and Make Better Deals,' by Ed Brodow. 'The Little Book of Strategic Negotiation: Negotiating During Turbulent Times,' by Docherty. 'The Essentials of Negotiation,' by Lewicki, Saunders, and Barry. And 'Getting Past No: Negotiating in Difficult Situations,' by William Ury. Thank you again. And if you have any questions or further information is needed, please don't hesitate to reach out to us, bye.

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