Rule 1: Attitude
Rule 1.1: Everything is negotiable all of the time.
Attitude is critical. Novice negotiators do not understand that everything is negotiable all of the time. They give up too easily. If you slam your briefcase and walk out of a negotiation session, they do not understand that this is a tactic; they interpret it as the end of the negotiation.
I had a custody case recently in which I was representing a father who was concerned about his ex-wife's emotional stability. Since their divorce, she had changed jobs several times, changed sexual partners several times, and had problems with her temper and her temperance. On his behalf, I contacted her lawyer and requested that she submit to a psychological evaluation. When that request was ignored, we filed a suit, requesting that the father have primary custody of the children. I then proposed to my opposing counsel that we schedule mediation. She refused because "your client wants custody of the children, and my client will never agree to that". She failed to understand that my client's lawsuit was a negotiating tactic. Had she understood this, she could have saved her client substantial legal fees. This is a common scenario. Many lawsuits wind up in court because lawyers do not understand that "positions" are always negotiable.
• "Many attributes go into making a skillful negotiator, including such things as having a good memory, being 'quick verbally', and handling stress well. But effectiveness is as much a matter of attitude as it is of ability. The best negotiators exhibit four key habits of thought that everyone, regardless of their style or IQ, can adopt to improve their negotiation results ...
• A willingness to prepare
• High expectations
• The patience to listen
• A commitment to personal integrity" 5
Rule 1.2: Compromise is omnipresent.
I cannot remember conducting a mediation or being involved in a dispute that could not have been compromised. Master Negotiators are always on the look-out for an acceptable compromise, especially as the gap between the parties narrows.
"Assume that you will end up in the middle, between the two opening negotiation positions. ... In little and in big things, we end up splitting the difference."6
Rule 1.3: "Fair" is a range.
Many negotiations break down because one person has a number in mind (his "bottom line"), and the other person has a number in mind, and one or both parties adopts a negative attitude about closing the gap. One way that Master Negotiators avoid impasses like this is to understand that reaching agreements with people is rarely such an exact science that we can get things down to decimal points. Whether you are trying to settle a personal injury case, buy or sell real estate, or ****ering over a premarital agreement, rare is the book that says what the thing is worth. How much will the jury award? How much would another buyer pay? How much would another future spouse want? And, if the solution to the various problems over which we typically negotiate were so easily found, there would be no reason to negotiate. Thus, by the very nature of the beast, the "fair" resolution in every negotiation, the elegant solution, is a range, not a point in space. By keeping this in mind, Master Negotiators are more flexible than novices.
"... when I negotiate, I look for the favorable middle ground - where my client is pleased with the resolution and the other party is satisfied enough to do the deal."7
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