(Part 1)

By Irving Hymson, Esq.

When I lecture on the Art of Negotiation I note that, while all enjoy the theory, some appreciate the opportunity to make lists of real concepts that can be viewed and reviewed prior to a negotiation session so as to have concrete reminders of important elements in any negotiation. Foremost on the list are things to include in a negotiation as follows:
1. Thorough preparation including alternatives. There is, of course, no substitute for being thoroughly prepared prior to commencing any negotiation. I have a simple rule: If I am not prepared, I do not negotiate. Preparation also includes having alternatives ready. As a practicing attorney, one of the criticisms I often hear about attorneys is that they are “deal killers.” I used to object strenuously to that point of view but, after twenty-seven years of practice, I understand it better. What is meant is that people without a lot of experience in a certain area are more prone to say “no” or encourage aborting a deal. The experienced person is prepared with alternative ways to accomplish what the parties seek to accomplish and, accordingly and thus is more likely to make a deal rather than kill it. It is an important point to keep in mind when choosing legal counsel (make sure you have the right horse for the course) as well as conducting your own negotiations. Have alternatives. If the price doesn’t suit, perhaps it will with more favorable terms. If you know you will need to draft a clause regarding a radon inspection contingency, have the language with you should you need it.
2. Getting what you need but leave others satisfied that their needs have been addressed. There is no substitute for satisfying needs in a healthy negotiation. If it does not cost you to let “them” have “theirs,” then let them! A satisfied feeling at the end of a negotiation will leave the parties with a good relationship that may need to be availed of during the course of implementing the contract or relationship.

3. Taking a balanced (win/win) approach. It is not often that you will win much and the other lose much. More likely, there will be a balance slightly tipped one way or the other. If you are seeking that balance from the beginning, the likelihood of your having the scales tipped more in your favor than otherwise will be greatly enhanced. Such an approach will also leave good relationships for future interaction.

4. Seeing negotiations as competitive but cooperative. Yes, there is some element of contest involved but in the end you need the cooperation of the other party in order to accomplish what you want and to get the deal done. The surest way I know to make negotiations more difficult is to lose sight of the need for the cooperative element.

5. Active listening. Success equals perception. Perception comes in great part from listening. If you need to know what it is the other party wants, listen for it. They will oftentimes be quite clear and direct with you. If they are not, then you need to listen actively, which is to say hear what is being said, attempt to read between the lines, and interpret the two into a theory that you may actively check back with the speaker by asking. I spent a whole afternoon once with an attorney who told me at times that he could not offer more and at other times that he could not offer more, at this time. It took me a while to get the key to the negotiation. All I had to do was wait for the time he could offer more on those particular issues!

6. Thorough goal setting. You must know what you want to achieve before you enter into negotiations. You must keep that in mind as you conduct your negotiations. There is nothing worse than being told you can have something that you are not sure you really wanted. Make sure that all the participants on your side are on the same wavelength as to the real goals. Help understand them by prioritizing those goals.

7. Commitment to goals; asking. You must not only set the goals, you must be committed to them. You must make a real, good faith attempt to achieve them. You cannot have what you do not ask for. Hymson’s rule is ask three times. (I learned it from my teenage children.) Actually, I learned from my teenage children that you should ask twenty times but I have, in the interest of saving time, abridged the rule to just three.

8. Integrity. Negotiations come and go but what we are each left with is our integrity which should never be compromised for any reason and certainly not any one transaction. This is a relatively small town when it comes to business, real estate and legal circles and one’s reputation is to be carefully guarded and preserved. Simply put: no deal is worth it if it needs you to compromise your integrity.

9. Use your power (in moderation). Power is, of course, valuable but sometimes it is not necessary to use all of it. Sometimes the hint of the power or the knowledge that it exists is enough without clubbing the opposer with it. The heavy handed use in one phase of negotiation could produce a problem in another phase of the negotiation where you do not have that same power to employ. It is good to keep in mind that the perception of power is not as clear cut as one might think. For example, people believe that lenders have all of the power because they have the money. Having represented many lenders over the years, I can tell you that having the money is not enough. Lenders need to earn money on that money and accordingly finding the right deal for them is every bit as important as finding a lender who will lend you the money if you are the borrower. Also, once the money is loaned there is a dramatic shift in power even though the documents do not read that way. If you question that statement, review in your mind the S&L crisis and the inability that those lenders had in getting their money back and their lack of interest in the collateral which they subsequently oftentimes dumped on the market.

10. Study limits of other’s power. Do not be quick to assume that the other person has as much power as you give him/her credit for. People talk about seller’s markets or buyer’s markets. In the end result in the given deal that you are doing if you have a seller who is motivated to sell then he wants the deal at hand irrespective of whether or not in his neighborhood or in his city there is generally perceived to be a seller’s market. Similarly, if you represent a buyer, even when there is a glut of homes on the market, when the buyer falls in love with that one special house he and she must have it regardless of whether or not they can sit back and pick and choose from ten others. That is just a fact of life. I always believe if someone is sitting to negotiate with me then I have power because there must be something that I have which they want.

11. Sensitivity to others. Just as you need to know the limits of other people’s power, you should also be sensitive to their needs. The key to successful positioning in negotiation is understanding. One cannot fully understand unless one is sensitive to all of the people in the negotiation process. Make sure you understand what needs are at issue or in question. Sometimes they are not business needs at all but rather they are human or personal needs that have to be addressed to satisfactorily proceed, e.g. making a younger person feel like he/she is experienced, or an older person feel like he/she is current and “with it.”