dougnoll’s posthaven

In this post, I want to talk a little bit about the attributes of a master negotiator.
I have mediated thousands of conflicts of all different kinds, both litigated and non-litigated. I have had the opportunity to work with some truly masterful negotiators. There are some uniform attributes and characteristics that are worth keeping in mind as you develop into a powerful, kick ass negotiator.
The first attribute is to recognize that negotiation is a process, not an event. In law school you are taught that the ultimate outcome is either a verdict or a decision on appeal. The focus is on the outcome for the client and not a lot of time is spent on all the processes. Thus, the conversations are around how to avoid mistakes, how to obtain the best outcomes for clients, and the focus is on winning.
In negotiation, the outcome will be defined by how well the process is managed. Master negotiators understand that process determines outcome. Master negotiators will spend considerable time making sure that the process is functioning properly to move the parties towards settlement. In short, master negotiators focus on process.
 Master negotiators also recognize that legal negotiation involves decision-making in the face of great uncertainty and risk. For the client, the stakes of a lawsuit can be very high. No one can predict what a jury will do in any given case. Therefore, sending a dispute to trial for decision is not quite as random as a roulette wheel, but sometimes seems that way.
Master negotiators study disciplines far beyond the law. They want to understand the principles behind cognitive biases and decision-making errors. They understand that emotions drive decisions and therefore knowing about emotions in human brains is just as important as knowing about the applicable principles of law in a case.
Master negotiators also know that negotiation always contains a tension between competition and cooperation. On the one hand, negotiators wish to obtain the best outcome possible for their clients. But if they are too competitive, the negotiation will collapse in impasse. Thus, cooperation is needed. However, if cooperation is to freely given, the possibility of exploitation by the other side is always possible. The master negotiator manages that tension effectively.
The master negotiator cultivates a strategic mindset directed towards helping the client make the best decision possible with an eye towards the deep consequences of that decision in years ahead. Master negotiators recognize hardball players instantly. They have learned how to identify hardball tactics, label them, and deal with them by focusing on the process of negotiation. They do not stoop to emotional, ad hominem attacks or gratuitous comments at the ethics or behaviors of opposing counsel or parties.
Master negotiators also recognize that being a lawyer does not equate to being a master negotiator. Master negotiators have learned that law school teaches analysis based on an adversary ideology. Law school teaches students how to become appellate judges, read appellate decisions, and write appellate memorandums. Generally speaking, those skills are not used in negotiation. Although more law schools are offering elective courses in mediation and even in negotiation, these offerings are considered to be fringe courses. Many law professors do not consider the skills of negotiation to be worthy of instruction in the law curriculum.
Since so much of the law curriculum is based upon the reading and analysis of appellate decisions, litigation is taught as a zero-sum game in which there can only be a winner and a loser. In every case, law students must understand why one side lost, and the other side won. As they distill out the rules of law from the cases, they are indoctrinated in a philosophy that lawyering is about winning cases for clients. The core values of negotiation, which include cooperation, compromise, and collaboration with opposing counsel and parties are not only ignored in law school, they are disdained.
Master negotiators recognize that negotiation outcomes are not always as gratifying as trial outcomes, but neither are they as depressing. Since negotiation involves compromise, there is no high similar to the rush of winning a jury trial. In addition, lawyers do not measure themselves by their skill in negotiation. Rather, they seek reputations for toughness, trial competency, and dogged persistence against all odds. When was the last time you heard a lawyer described as a great negotiator?

Remember, the best way to win the game is to call it yourself.
Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

In this post, we are going to look at the two fundamental forms of negotiation.

The first form of negotiation, and the one that is most familiar to lawyers, is called distributive negotiation. In distributive negotiation, the parties are negotiating how to divide or redistribute things. Thus, in a lawsuit, negotiation is often about how much money the defendant will pay the plaintiff for the case to go away. This type of negotiation is called distributive because value is being distributed from one party to another.

The second form of negotiation is called integrative negotiation. In integrative negotiation, the parties are looking for ways to expand their options and create value. In contrast to distributive negotiation, integrative bargaining involves problem-solving and value enhancement. An example of integrative negotiation might occur in a lawsuit involving two businesses over breach of contract. While the parties might negotiate for a fixed payment to settle the claim, they might also find a way to expand, and renew, their business relationship so that both sides benefit from the negotiation.

Sometimes you hear the terms zero-sum and win-win. These are important terms to understand in negotiation and are often misused because they are misunderstood.

In a zero-sum situation, the only way that I can gain is if you lose. In other words, there is no way for both of us to come out ahead or be winners. This is the pure definition of competition because in competition, there can only be one winner.

Distributive negotiation is often viewed as a solution to a zero-sum problem. But a zero-sum problem confronts us with a fundamental strategic problem in negotiation. You might have already come across this and wondered about it.

The dilemma is “Do I compete and play hardball?”or “Do I cooperate?”

The problem is this:

If I am too competitive, I will blow a chance for settlement.
But if I am too cooperative, I might give up too much.

This is the fundamental dilemma facing every negotiator.
 
How do I avoid impasse, but not give up everything to get a deal?

Sometimes, a highly cooperative approach, such as integrative negotiation can foster a deal. Other times, a more competitive approach, such as distributive negotiation, is more effective.

The takeaway is that the nature of the problem dictates the negotiation process to be used. As long as the conflict remains centered on things and is not too emotional, distributive negotiation and evaluative mediation will tend to work. However, distributive negotiation is not efficient or effective at high levels of conflict or when emotions are in play. In these kinds of disputes, either traditional or facilitative mediation is often needed to de-escalate the emotions before there can be distributive bargaining. It is important for you to remember these two principles:

•    As long as the conflict remains emotional, integrative negotiation processes are effective and efficient.
•    Integrative negotiation is not efficient or effective at low levels of escalation or when things are solely in play.

You should not be surprised to know that most negotiations involve emotions and most negotiations involve things. Therefore, you must be skilled at both integrative and distributive negotiation. You must also be comfortable with evaluative, traditional, and facilitative mediation processes because a good mediator will use all three in a given process.

Remember, the best way to win the game is to call it yourself.
Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

 

Negotiation is a skill that must be learned. Most people never get beyond the simple quid pro exchange of essentially, "I'll scratch your back if you scratch mine." However, sophisticated negotiation requires much more than simple exchange. A lot of people forsake negotiation training. I think this is due to a number of myths around negotiators.

So, let's look at these myths and dispel them.

The first myth is that negotiation is only about the money. Sometimes negotiation is about the money, but many times negotiation is about anything but the money. In fact, the money simply becomes a symbol for much deeper underlying needs and issues that must be resolved.

Another myth around mediation says that negotiation means getting the best deal for me or my client. Often times, the best outcome is not going to be the best deal for me or my client. It can be making sure that everybody gets a good deal out of negotiation. Sure, there are times when negotiation can become very competitive. However great negotiators find that if they can make a deal that satisfies everybody as reasonably as possible, then they really done a great job. Negotiators that are purely selfish find that they reach impasse and suboptimal deals quite frequently.

The third myth is that negotiation is simple, or the opposite, that negotiation is hard. Actually negotiation is not a simple nor is it hard. There is a lot to understand about the theory and practice of negotiation, but it is not a simple process of simply exchanging dollar numbers in a distributive auction.Nor is it an arcane, difficult to understand, highly sophisticated practice that only experienced negotiators can successfully engage in.

There is also a myth that negotiation follows a predictable pathway and that only simple steps need to be followed. The truth is that negotiation is not always a predictable path. It is true that in some broad frameworks of distributive negotiation certain steps follow one after another. However, learning how to negotiate by formula or recipe will lead to disaster. As you study negotiation, you earn about the nuances of negotiation practice and understand that it is not a linear process at all. It is iterative, elicitive, and reflective.

Some people are thought to be born negotiators. Think about this one a moment. Even used-car salesman have to go through extensive training to learn how to sell cars. So negotiators are not born, they are made. The good news is that you do not have to wait 20 or 30 years to become a masterful negotiator.

Another myth is that wicked and evil people make better negotiators.
Actually, if you look around the Middle East in the last two years, you can see that leaders like Sadaam Hussein, Moammar Ghaddaffi, and Hosni Mubarak who have committed crimes against humanity turned out to be very poor negotiators. Most people mistake the fact that people in a position of power may often appear to have a better BATNA. BATNA means "best alternative to a negotiated agreement." 

Some people believe that negotiation is a failure if you do not gain anything at the end of the day. Well, if you are a defense lawyer, you will never gain anything in negotiation. Often times a good negotiation outcome is defined by how risk is managed by the parties and their lawyers.

In addition, there are many negotiations where there is no gain, but there is a restoration of relationship a rebalancing of power, a reconciliation of injustice, and a righting of moral wrongs.

Knowing about these myths can help you overcome the idea that sophisticated negotiation is a skill to be learned and mastered, not an arcane art left only to the very experienced professional.

Remember, the best way to win the game is to call it yourself.
Better still, change the game completely.

Douglas E. Noll, J.D., M.A.
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com