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Client Competence Is the Answer

The Improvisational Lawyer

Preparing for Negotiation

Perception is Reality

Practice Tips

Preparing for Negotiation

There are some lawyers who seem to achieve their objectives with a lot more ease. Even opposing counsel appears to desire to help them meet their objectives. These are some of the most potent and powerful attorneys in our culture as they are highly skilled at negotiation and persuasion.

The Likeable Lawyer specializes in offering CLE courses that help lawyers emulate the qualities and characteristics of the most persuasive lawyers. We teach the skills that allow anyone to achieve more favorable results, with reduced aggravation, and in a style and manner that leaves others smiling and feeling good about being persuaded.

Toward this objective, one of the skills we emphasize is “negotiation preparation.” Oftentimes, lawyers invest in identifying their client’s objectives and then eagerly jump into negotiations to convince the other side. To the extent the other side expresses anything contrary, there is a danger of conflict, increased tension, and parties taking antagonistic positions. Negotiation preparation helps minimize these dangers, and increases the likelihood of achieving more of our and our clients’ objectives. The two aspects of negotiation preparation are (a) people planning, and (b) substance planning.

It is critical to separate the people from the substance in a negotiation. You can negotiate hard on the substance while going soft on the people. People planning is developing a relationship with the other, independent of the formal negotiation. It is much harder to ascribe diabolical intentions to a person with whom you have a relationship. You might invite opposing counsel to have lunch with you prior to negotiating with them. Talk about subjects of common interest: children, hobbies and such. This strategy is not for every situation; however, it will make a positive difference with at least 55% of the people we negotiate with, perhaps a much higher percentage. This upfront investment pays off greatly in working through the rough spots later in the negotiation process.

Substance planning is, in my opinion, one of the most overlooked opportunities to improve results in negotiation. Creating a “needs map” is one of the most important elements of substance planning. A “needs map” is a written document that expresses the needs and objectives of both parties to the negotiation, and may also consider other factors such as fears and concerns. Sometimes the needs map is created in conjunction with the other side, but equally often it can be contemplated and prepared unilaterally with a little curiosity, empathy and other-person consideration. You may not be able to ask the other person what their needs are (they often do not know and might become suspicious of this question). Rather, it is a unilateral question to ask oneself, looking at the situation from the other side’s perspective and with curiosity. We seek to put ourselves in their proverbial shoes.

Substance planning is best done prior to the actual negotiation. You might ask yourself what they need from situation? What are they concerned about? Of course, you also want to ask the same questions of your side and contemplate your side’s real needs and interests. As you consider the matter from both sides’ perspective, record both side’s needs and interests, creating a needs and objectives map that you are able to refer back to when tensions arise. You can update this map as new information is discovered.

When the time comes for formal negotiations, you are able to refer to the needs map, and make proposals that are supported with the principle of seeking to meet as many of both side’s needs and objectives as possible. The other side will be refreshed that your proposals reflect an understanding of their objectives and they will update you if you are missing something. If the people investment was made, they might even work with you toward finding creative solutions that gets both side’s needs and objectives met. I’ve seen this happen hundreds of times.

Of course, this article is a cursory review of a far more comprehensive process that we teach in our courses. Our five-part “Negotiation Success Series” delves deeply into the entire negotiation process, from planning to signing the agreement, and is now available by teleconference, audio CD, video DVD, and other downloadable and streaming formats (including mp3 and mp4).