Prof. Ralph Cagle
University of Wisconsin Law School
"So let us begin anew—remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear. But let us never fear to negotiate. Let both sides explore what problems unite us instead of belaboring those problems which divide us.
. . . . .
And if a beachhead of cooperation may push back the jungle of suspicion, let both sides join in creating a new endeavor, not a new balance of power, but a new world of law, where the strong are just and the weak secure and the peace preserved."
– President John F. Kennedy - January 20, 1961
1. Negotiation provides opportunities in our lives -- seize those opportunities.
We don’t always see the opportunities presented by negotiation in the professional, social, economic, and personal interactions of our lives. Sometimes people will avoid negotiation for a number of reasons. They prefer other strategies; feel not sufficiently trained or skilled to be successful, or may feel distaste for or fear of conflict.
Conflict is inevitable in the human experience. While conflict can pose danger, it also presents great opportunities. Conflict can damage relationships, but when managed well, it is more likely to strengthen if not save relationships. Conflict can teach and lead to personal and mutual growth. But, conflict can be hard for many people and it is not uncommon for people to become defensive or even offensive when they feel challenged by conflict.
2. Negotiation begins with a need and understanding of why someone might be willing to satisfy that need.
Fundamentally, people negotiate because they recognize that others have or can better access something they want or need (“interests” in the language of negotiation). All things considered, they recognize negotiation as the better way to satisfy their interests. (In identifying the central role of interests in negotiation, I have avoided the use of the more narrow and charged "self interest". There is a long-standing and lively debate among psychologists, philosophers, sociologist, anthropologists and even geneticists about whether human behavior is fully explained by the pursuit of self interest or whether humans are genuinely capable of, if not wired for, some form of altruism. We all probably have our view on that which may influence how we choose to interact in negotiation. For me, I choose to allow for the possibility that my behavior might make unselfishness a satisfying response for my counterpart.)
So, if I want someone to treat me favorably in a negotiation, I need to understand their interests and I need to understand the particular negotiation from the standpoint of advancing their interests.
Certainly, one dimension of how someone will see their interests is by assessing the relative costs and benefits of working towards and reaching agreement or alternatively or just not engaging.
3. People have alternative ways to get what they need or want.
People have alternatives to negotiating with you to get what they want or need. They are:
a) Independence. Self-sufficiency without resorting to interacting with others (“I can do it myself”)
b) Dependence. Hoping/waiting for ones’ needs or wants to be met by voluntary benevolence or altruism. (“ I have always relied on the kindness of strangers.”)
c) Contest. Structured competition for fixed resources (such as athletic competition, or a trial to a jury)
d) Dominance. Controlling or coercing the behavior of others who are vulnerable, who can be intimidated, or who may fear any conflict. (“ I take what I want. You get what I give you”).
Dealing with dominance-related behavior is a necessity in those negotiations in which a party acts on the belief that dominance is a legitimate negotiation tactic. Virtually every negotiation raises and requires resolving some competitive issues (e.g. limited resources). Competitive behavior should be expected and is a necessary part of a complete repertoire of skills. Dominance is another matter. Dominance usually is exercised by some resort to force, often psychological pressure. It is also often rooted in deception. In this regard, reference #8--"Never accept that what you want is non-negotiable". A particular form of the ultimate dominance deception is when it comes masked behind a falsely collaborative or friendly demeanor.
e) Interdependence which is any set of behaviors, such as negotiation, mediation, or conciliation that involves communication, reciprocity and mutual consent. (“Come now, let us reason together”).
Sometimes the first step in gaining the benefits of negotiation is getting someone to choose to forgo one of their alternative approaches.
4. Know what people want or need. People have needs and even more wants. Peoples’ needs and wants fall into three broad categories:
a) people need or want stuff – which includes money (obviously), but also the tangibles that are attached to power, status, influence, and reputation;
b) people need or want others to behave in certain ways – usually in the form of cooperation or assistance with their goals; and
c) people need or want psychological or emotional needs met (even when they don’t know they have them).
(Some examples of people's emotional needs that can be satisfied in a negotiation are risk aversion, feeling secure (not feeling out of control), having options or choices, being really listened to, feeling recognized or respected, feeling like they are building a relationship, earning favorable treatment in the future, being a problem solver, being appreciated as fair or reasonable, being seen as tough or firm, being likes, feeling competent, feeling they have helped someone, being part of something important, being taken seriously, being trusted, developing professionally, crafting a creative or elegant solution, not being taken advantage of, needing the negotiation process to be over with.)
The role emotions play in negotiation is often underestimated. Much of the “currency” that is or can be exchanged in negotiation derives from assessing and addressing the particular emotional needs of the parties or their negotiator- agents (See Satisfaction Principle, below).
These classifications wants/needs can serve as useful reminders when the negotiation moment calls for identifying and filling another's interest to gain a reciprocal concession, secure a commitment or just to constructively re-direct the negotiation discussion.
5. Negotiation operates on the Satisfaction Principle.
People commit to a negotiated agreement when they feel their interests are sufficiently satisfied. Satisfaction is the belief that this is the best I can get out of this situation at this time with this person(s), given my available alternatives. Satisfaction is clearly perceptual. People value things differently. Mutual satisfaction with a negotiated outcome does not mean equal satisfaction or equal outcomes. People’s capacity to be satisfied in a negotiation is closely tied to their expectations and their perceptions of their alternatives to a negotiated agreement.
Setting and maintaining highly favorable but realistic expectations for negotiated outcomes consistently results in more favorable results. A person can be satisfied with tangible and/or intangible rewards in a negotiation depending on how they value them as satisfying their needs, wants and concerns. Intangible rewards more typically have a higher value to the receiver and lower (or no) cost to the provider.
6. Information is power; handling of information wisely is leverage.
A tangible and influential factor in negotiation is information. What we know, don’t know, uncover, or reveal and how and when that all unfolds is usually crucial to negotiation success. The quality of information is also important. This includes its completeness, timeliness, accuracy, and authoritativeness.
The influence of information in negotiation is complicated by how information is weighted colored by the perceptions of the parties. In negotiation, perception not only trumps reality most of the time– perception is the reality. To navigate successfully in the negotiation environment, it is crucial to understand how perceptual screens influence how people see, understand, and act– including (and perhaps most challengingly) how perceptual screens influence how we see, understand and act.
7. Never accept that what you want is non- negotiable. There is
a frequently used and often subtle tactic of dominance that smart
negotiators anticipate and therefore cannot be fooled by. The tactic is
to exploit a common perception that many things are just not negotiable
(“It’s not an option”, “it has never been done”, “we can’t do that”,
“that is not on the table”, ‘it’s not our policy,” “it’s too much
trouble”, “it will create upset to raise that,” etc.). Falling prey
to this tactic usually results in the perpetrator advancing their
interest effortlessly at the expense of those unaware of the tactic or
those unwilling to challenge the tactic.
The appropriate response to this tactic of dominance is to first recognize it (it can be very subtle) and then to counter it with a simple but powerful realization: everything you really want is negotiable – nothing is non-negotiable . Know this and act accordingly and the tactic loses all of its force. Expect the persons using the tactic to test your resolve. The strategy behind the principle is that most people will submit with little or no resistance. But, if you see this tactic and resist it sufficiently, the cost-benefit to the perpetrator will disappear. This one perspective and counter–tactic will expand your negotiating options and opportunities and prevent giving away what you have a legitimate claim to.
8. Many negotiators are undercut (if not undone) by ineffective habits and attitudes.
Negotiators can "set themselves up" with acquired bad habits and self-defeating attitudes. A good case can be made that we all have some of these because no matter how proficient we are, we are all human and most of these ineffective habits are rooted in human imperfection.
Yet, good negotiators succeed despite these "imperfections". How? Good negotiators are honestly self-aware and appraising, self-correcting and disciplined.
So, for the purposes of self-evaluation, here are the most common, ineffective negotiation habit and attitudes:
a. poor preparation
b. poor management of the stresses of conflict-discomfort with uncertainty, ambiguity, change or lack of control (all part of the negotiation process).
c. setting too low goals for success (leading to being satisfied with lesser results).
d. being impatient-rushing to conclusions or agreement or just wanting the negotiation to be done.
e. talking too much-which both reveals more than intended and cuts off sources of information.
f. seeing winning as the other side having to lose ("zero sum thinkers").
g. lacking self control-quick to anger, aggression, defensiveness, deceit, withdrawal or other self-defeating emotions-often personalizing disagreement.
h. lacking credibility/not being trustworthy-using tactics clearly intended to fool others.
i. yielding in the face of adversity-giving into threats or pressure-can't say "No!".
j. assuming or conceding what they want or need is non-negotiable or unattainable.
k. being afraid to fail (or being seen as failing) and become overly risk adverse.
l. needing to be liked or to receive approval.
m. not paying attention to what is going on-do not listen, observe, record or remember.
n. misreading/mis-assessing such key factors as risk, value, power, information or momentum.
o. lacking "people sense" - having little interest in other people; not working well with others; consistently misreading others.
p. becoming too committed to their strategic "comfort zone"-resisting change in strategy even when the strategy is not working.
q. not systematically learning from their experience.
9. First impressions can be a key opportunity for advantage.
Certainly many negotiations "come together" at the end, often in a rush of activity, but that shouldn't obscure the fact that the first moves in a negotiation can be crucial and if executed well, can set up very favorable outcomes. we have all seen negotiations that have gone horribly wrong by poorly planned execution in the initial phase (poorly placed opening offers, being surprised and thrown off balance by an opponent's well-planned opening, getting anchored to an unfavorable settlement range, losing credibility early that can't be recaptured, leaking harmful information, scaring another party away from serious negotiation).
I recommend that as a part of the negotiation planning process, in addition to planning for the entire negotiation, that negotiators think carefully and specifically about their very first opening moves. This may involve deciding a strategy about making or prompting the first offer and responses to any received offer; concession patterns; and key questions to ask that may frame the negotiation, establish roles, elicit important information and convey information such as your level of knowledge or preparation. Opening strategy may involve deliberate choices about where or when to negotiate or what mediums to use. Many of the people you negotiate with will be trying to read you in the early stages of the negotiation and then implement their strategy based on that read. By being very proactive and conscious of your early moves, you can deliver just the right message to shape their perception and therein gain a real advantage.
10. Words matter (as do other communicative symbols).
Because language is what we mostly rely on to convey deliberate meaning, we must be careful in our use of words and phrases to communicate information, intention, options, and other forms of meaning in our negotiations. Some negotiations are highly planned and structured with measured and precise attention to each word used in each communication. Certain diplomatic negotiations and negotiations executed by formal written exchanges as opposed to face-to-face exchanges are examples. These can better assure that the meaning intended is what a negotiation counter-part hears and understands. Most negotiations do not allow for the professional resources or have the communicative traditions that assure such high levels of precision. Yet, in every negotiation, it is important to assure, as best we can, that what we say is what we mean, and what is meant is what is heard. Often, through imprecision, inattention, or carelessness this is not what happens.
Many negotiations unfold with spontaneity or informality that may cause a less careful negotiator to not choose their words or other expressions with due care. It can be a costly mistake. This verbal mistake can be compounded by most people's tendency to hear what they want to hear from what others say. They may want to hear what confirms their own perspective, what is comforting or what may magnify or diminish conflict depending on their preference. So the task for the careful negotiator is not only to use words carefully, but to also pay attention to how conveyed words are heard and understood.
Beyond words and phrases, other communicative messages are conveyed and received and must be evaluated and strategically managed in a negotiation. These include non-verbal communications (e.g. postures, eye movements, reflexive actions) and contextual communications that may foster inferences such as the sequence, pace or size of a series of offers or counter-offers.
This entire messaging environment of negotiation demands deliberation and attention. This is a challenge especially since most real-world negotiations inhabit a fluid, idiosyncratic, anxious and often fast-paced human environment. Perfection is not possible, communicative mistakes are not uncommon, but making our best effort is essential.
11. The medium of how to conduct a negotiation should be a deliberate choice.
First, there are many communications tools available to us--telephone, written, in-person and more finely-tuned variations of them including electronic variations. Making deliberate choice(s) among them is part of the preparation/readiness process. Each may favor a particular communication style or strategy (e.g. written allows for more planned and deliberately paced expression; the telephone may permit an element of surprise or shield one from revealing too much by non-verbal signals; in person negotiations foster building rapport, and favor the particularly observant negotiator.
A second choice of how to conduct a negotiation is which personnel to use. Is it better to negotiate directly between the parties or through agents? Some of both? In teams or solo? What is the best assignment of roles between principals and agents, especially on issues of authority and decision-making?
Finally, there are times to choose a modified negotiation vehicle such as mediation or some other form of alternative dispute resolution.
12. There are some attributes (I would call them skills) that are consistently characteristic of highly successful negotiators.
Some people consistently obtain favorable and sustainable terms and results in their negotiations. Some of you may be such negotiators. What do they (you) do that works so well? What can those not as consistently effective do to improve their outcomes?
There are no simple answers to those questions. What will breed success depends on how one manages the unique complex of forces in a particular negotiation. There are no established or accepted universal rules for negotiation success. Yet, there must be some things that are common to those who are consistently successful negotiators.
In my experience as a negotiator, a negotiation trainer and adviser, and a mediator, I have seen some attributes (though I prefer to think of them as skills) that successful negotiators consistently demonstrate. There may be more than those I describe here and we have to allow for the negotiator who seems to succeed by an idiosyncratic approach that shatters every sense of accepted practice. But in my observation, these capabilities are consistently demonstrated by successful negotiators.
NOTE: I added some questions under each attribute or skill that you could use to assess your negotiation performance if you thought it useful.
I see consistently successful negotiators doing the following:
■ Prepare systematically and thoroughly in readiness to negotiate
Did I prepare systematically and completely? What do I not know that can be learned in the negotiation? Am I emotionally ready?
■ Set and pursue ambitious goals
Did I seek high standards for success (optimum results rather than bottom line)? Did I hold to those standards in the face of resistance? Do I require compelling reasons to lower expectations of success?
■ Are attentive to what is happening in and around the negotiation
Did I see significant developments as they unfolded including key changes? Did I hear what my counterpart said or did not say? Was I observant? Was I tuned into unexpected opportunity?
■ Build and sustain credibility
Was I truthful in dealing with my counterpart? When I stated something as fact or took a firm position, was it credible and believed? Was my demeanor seen as real or genuine?
■ Develop and utilize strategy
Did I create and implement an overall strategy targeted to the particulars of this negotiation? Did I develop and implement such an opening strategy? Was my overall strategy flexible enough to account for the unexpected? How well did I use my leverage? Did I use it bluntly or subtly? Did I use it timely? Did I recognize and effectively counter my counterpart's leverage?
■ Are empathetic to the needs and interests of the other side
How well did I identify my counterpart’s real interests? Did my counterpart walk away feeling their interests were understood and addressed? Was my counterpart sufficiently satisfied with the outcome that they are likely to honor the deal? Did I satisfy my client’s key interests? Will my principle see this as a good/great deal? Is it really a good/great deal?
■ Are excellent communicators
Did I chose my words and other means of expression carefully to assure that what is heard is what I intended to convey? Did I listen actively and carefully to what the other side said (and did not) say?
■ Are resilient and display self-control and confidence
How did I respond to adversity or the strategy and/or tactics of my opponent? Was my behavior (and my affect) intentional? Did I ever feel a loss of self-control? If I lost control, did I right myself quickly? Did I feel confident? If and when I did not feel confident, was that apparent to my counterpart?
■ Convert experience into refined, practical knowledge
What did I learn about how to negotiate more effectively and about myself as a negotiator? How can I put that to use to help me in my future negotiations and other dealings?
13. There is usually more than one way to measure success in a negotiation
First, make no mistake-- results matter. A highly favorable outcome is an indicator of success. But, people tend –often need– to believe that they obtained great deals in their negotiations. Being persuaded (or perhaps fooled) to believe you got a great deal (even if it wasn’t) is a big risk.
One factor which contributes to the risk of overestimating the value of our negotiation outcomes is preparation built on our bottom line. Getting to or even near our bottom line is not the goal in negotiation even though there are times when such an outcome may be necessary. A more ambitious – and I think preferable– strategic standard to measure negotiation outcomes against is our optimal realistic outcome. What is the best outcome we can (or retrospectively could) achieve with peak performance? Research shows that negotiators who set, strategically pursue, and maintain optimal realistic outcomes consistently secure better negotiation results.
Success in a negotiation can involve other useful benefits other than maximized outcomes. Quality agreements may possess some of the following aspects: (a) the parties have a common understanding of the terms of the agreement; (b) the terms are comprehensive and complete; (c) nothing material was overlooked; (d) the agreement provides an optimal return on the parties’ investment; (e) the agreement anticipates and addresses potential implementation or enforcement issues; and (f) the agreement will endure–it is not so illusory or fragile that it can be broken or abandoned by any party. Whether or not agreement is reached, a negotiation can have benefit if it advances the ongoing relationship among the parties including the potential for further negotiations and deals or it contributes positively to our reputation within a community in which we will negotiate in the future.
14. There are some things respected negotiators just don't do
People who have gained respect for their craft and personal credibility within a community consistently get better negotiation results. To some measure that comes from things they don't do that less-successful negotiators might do.
In negotiations, respected negotiators:
(a) don't lie-yet noting that most settings permit-even expect- some misdirection about such matters as settlement intentions and personal estimations of value (sometimes called "puffing");
(b) reveal (or withhold) information without a reason--don't "leak" information, but an example of a good reason to reveal information deliberately is to build credibility
(c) don't play “gotcha games” -these shopworn ploys, all cheesy attempts at deception, kill credibility when exposed and only fool rank amateurs;
(d) don't make promises they can't (or won't) keep--e.g. exceeding your authority;
(e) don't say “yes” too easily;
(f) don't talk too much;
(g) don't need to be liked (as opposed to being likable);
(h) aren't unwilling or unable to walk away;
(i) don't give in to threats, intimidation, or personal abuse;
(j) don't cause others to lose face.
Prof. Ralph Cagle
University of Wisconsin -Madison
975 Bascom Mall
Madison, WI 53706
Ph. (608) 262-7881
firstname.lastname@example.org Rev. 8/12