Sharpen your arbitration skills by looking beneath the surface for a solution.
by Clint Waasted
The article is reprinted with permission from the October 4, 2013 edition of The Recorder
The need for good negotiation skills is ubiquitous across all disciplines and facets of law and life. From bargaining with your kids to creating business contracts, being an effective negotiator is a necessary tool in every person's personal and professional sphere.
Two of the most fundamental skills in effective negotiation are the ability to identify and utilize the underlying interests behind a client's positions, and the ability to effectively listen to the opposing party while negotiating. Using these broad skills as building blocks, lawyers can improve their ability to achieve successful outcomes in negotiations.
Understanding Interests and Positions
Often both parties in a negotiation adopt the same objective: to maximize their own benefit. The key to making progress in a negotiation is developing a broader perspective as to what represents "benefit." The first step is to identify each party's interests and positions and recognize the difference between the two concepts.
In a negotiation, each party is going to have a list of particular things it wants and needs. These objectives are a party's positions. Typically a position is simply a fixed amount of something at stake in a negotiation: a sum of money, a duration of time, a number of assets, etc. Alternatively, the reasons why a party seeks to achieve a particular position are a party's interests. Interests are the broader underlying motivations for wanting or needing a position.
Solutions to seemingly unsolvable problems can be created by taking the time to move beyond surface level positions to identify the underlying interests for each position. For example, consider the scenario from a popular negotiation exercise where two parties are negotiating for a fixed supply of oranges. Both party A and party B share the same position: to acquire as many oranges as possible. If neither party looks past their own position, the negotiation becomes a back and forth as to how to divide the existing oranges, and both parties walk away with access to fewer oranges than they would like.
However, identifying each party's underlying interest in obtaining the oranges opens an unseen pathway. As it turns out, party A needs oranges to make orange juice, while party B requires only the orange peels to be used as a spice. By broadening the scope of the conversation beyond the initial position, the parties discover that there is a way for each of them to use all of the oranges. Outcomes such as these are hidden in nearly every negotiation and can be discovered by capitalizing on the fact that underneath any position is a complex set of values, needs and objectives.
Prepare for negotiations by knowing your client's interests and positions and prioritizing them. Before you sit down to negotiate, you should develop a comprehensive sense of what needs to be accomplished during the negotiation. Know your clients goals and bottom lines and prioritize them. Often clients have several goals of varying importance, and the importance of each goal may fluctuate depending upon whether other goals are met. It is important to have an intimate working knowledge of all the moving parts within your client's goals so that when the bargaining begins, you can arrange the moving parts in a way that most benefits your client.
Identify the other party's interests and positions to discover common ground. During a negotiation, the opposing party is likely to assert its positions. However, the opposing party may not always offer information regarding its interests. Understanding both the positions and interests of the opposing party will allow you to push past sticking points in the conversation by giving you the ability to identify zones of agreement, and ultimately create new solutions within a negotiation.
Reframe the negotiation issues in terms of shared interests. Coming into any negotiation, the differences between the positions of the parties are initially the easiest elements to see. Many negotiators have difficulty seeing past these initial differences, and in focusing on them you are in danger of missing opportunities to "expand the pie" (as in the oranges example). By presenting the issues within a negotiation in terms of the underlying interests of the parties, however, you create infrastructure that allows for a greater focus on problem solving. Additionally, since concession is inevitable during negotiation, an interest-focused approach allows you to mitigate what you concede by highlighting avenues to meet underlying needs in alternative ways.
The ability to capitalize on understanding the interests and positions in a negotiation requires being an effective listener. Generally, one party will state a particular need or a desired outcome and the other party will respond by proposing a new solution. During this offer and counteroffer interplay, each side is communicating crucial information as to what is needed in order to reach agreement.
Give the other party room to speak. Oftentimes during a negotiation, parties spend an inordinate amount of time focusing only on their individual needs, rather than taking time to listen when the other side responds. It can be tempting to engage in a point/counterpoint, back-and-forth dynamic. A sophisticated negotiator will resist this temptation in favor of developing a comprehensive understanding about what exactly the parameters of the conflict are.
When crafting a solution for your client, any information you receive from the other side of the table is useful in helping find suitable middle ground. Have the discipline to focus when the other side is talking and take note of exactly what it is trying to communicate with its response. Avoid the habit of preparing counterarguments while the other party is talking. Save your responses for when you have had the opportunity to fully synthesize the information you have been given.
Ask questions to clarify and deepen your understanding of the other party's priorities. It is important to recognize that effective listening does not only involve being quiet and paying attention while the other party talks. It also necessitates asking questions to reveal the reasons why they have demanded a specific position.
Ask open-ended questions that require more than a mere "yes" or "no" answer as to what motivates the other side. Questions that speak directly to underlying interests will uncover the details implicit in the other party's positions.
Confirm what you have learned by demonstrating your understanding of a party's perspective. After you have listened and asked open-ended questions to clarify elements of what has been said, repeat back to the party your understanding of the points just made. Avoid simply parroting back what has been said to you. Instead, use your own words to synthesize the information you have been given to demonstrate that you have an independent understanding of what has been shared.
Exhibiting your understanding in this way is an example of active listening. It helps establish a shared perspective of the main issues and builds rapport. It can facilitate effective communication by reframing the negotiation toward interests.
Resources for Information and Training
There are many written resources one can use to enhance negotiation skills based on listening and identifying interests. From books such as Roger Fisher and William Ury's famous Getting to Yes, to Richard Shell's Bargaining for Advantage, and Bruce Patton's Difficult Conversations, there has been a great deal written on the topic of interest-based bargaining and the importance of listening.
Additionally, programs like UC Hastings's Center for Negotiation and Dispute Resolution can be an extraordinarily useful resource for obtaining negotiation skills training. Judges and lawyers from around the world come to CNDR to study all elements of alternative dispute resolution. CNDR hosts a biennial symposium, conferences, and workshops at which scholars and practitioners share research, case studies, and teaching techniques in the field.
Finally, an often overlooked method for developing these skills can be found in mediation training and certification. Although there are fundamental differences in the disciplines of mediation and negotiation, the role of a mediator requires the ability to identify the interests of the parties and make use of sophisticated listening and communication techniques. Learning and practicing these mediation techniques can sharpen your skills as a negotiator. CNDR offers mediation training and certification opportunities to practitioners worldwide, and CNDR professors break new ground in the study of implicit bias in mediation and the psychological dynamics of negotiation and lie detection. Other training opportunities can be found on the web or through local bar associations and other legal organizations.
Clint Waasted is the head of the competitive ADR program at UC Hastings and an adjunct professor of negotiation and mediation. He has coached UC Hastings' negotiation and mediation teams for 10 years and works in-house in the technology sector in Silicon Valley.