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  • InsideTrack
  • May 20, 2015

    Avoid Stalling Out: How to Successfully Negotiate

    May 20, 2015 – When it comes to negotiation, should you start by trying to push the envelope with a high bid? What will you do when the counter-offer is significantly lower? And how should you react to something in between?

    Make the wrong decision and you risk stalling out, says attorney and mediator J. Anderson Little of Mediation, Inc. Planning ahead is necessary.

    “It’s been my observation over the last 20 years or so, that people bargaining with positions tend not to plan how to do that ahead of time.” Lawyers too often resort to “reactive bargaining,” kicking off negotiations by demanding too much, resulting in a low-ball bidding war that causes both sides to stall out early without ever really finding out what a truly agreeable result would be.

    To get beyond this dead end, lawyers should develop a plan of movement, says Little. It starts by asking yourself, “where am I going to start, where am I going to walk away, and how do I move in between.”

    How to Bargain: Positional vs. Interest-based Negotiation

    When it comes to negotiation, there are two major schools of thought.

    The first is positional bargaining, which is characterized by the argument: “I want it, you can’t have it,” says Little.

    The other is interest-based negotiation, sometimes called the Harvard model.

    “The theory in the Harvard model is that if you can get people away from positional bargaining and help them understand what problem they’re trying to solve in the first place – what interests they have, what are their goals – you can help them come up with creative solutions, win-win solutions.”

    This helps both sides avoid the “horse-trading toward a result” type of negotiation that often doesn’t lead to an agreeable solution “because it’s a very hard way to bargain.”

    That isn’t to say the positional bargaining doesn’t have a place in negotiation, however.

    “Most of civil litigation is based on disputes that are about money,” says Little. “They end by somebody paying somebody else a certain amount of money. It’s all about positional bargaining.”

    By better understanding the dynamics of positional bargaining – the planning necessary, and the potential pitfalls – lawyers can do much to avoid hurdles and prepare of successful mediation and negotiation.

    Prepare for Negotiation as You Would a Trial

    When it comes to negotiation, lawyers still haven’t put it “on the same level as trial preparation,” says Little.

    Both require planning on a systematic basis well in advance of mediation or settlement conversation.

    “To try to help themselves and, particularly, help their clients understand better the value of their case,” lawyers need more “systematic study and understanding of the pieces of the case that go into determining value,” says Little. These include issues like liability, chances of liability, damages, and how likely it is they’ll get those damages.

    Training = Better Negotiation

    In the end, it all comes down to training.

    “Most of us as lawyers didn’t get training in negotiation when we were in law school,” says Little.

    “The first thing is to set aside a deliberate schedule of learning how to negotiate better. There are some great books out there, both from the Harvard model, and there are beginning to be some books on positional bargaining.”

    Set aside a reading schedule and attend training. “We highly recommend people take mediation training to learn how to be better negotiators,” says Little. “You learn a lot of the principals in mediation. I first learned about negotiation when I took a mediation training at a local community dispute settlement center in my hometown.”

    J. Anderson Little is the author of Making Money Talk. He presented at the 2014 State Bar of Wisconsin PINNACLE Litigation, Dispute Resolution, and Appellate Practice Institute.

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