Three Tricks That Make Negotiations Work

by Gilbert LLP

The conventional wisdom: Negotiation is serious business, you have to keep your eye on the ball, it’s war carried out by other means.

True, but only part of the story. Some of the best advice about negotiation is counterintuitive. Earlier, I offered “Four Tricks That Make Mediation Work”—letting the other side pick the mediator, refusing to argue about who’s right, leaving the litigators at home, and dealing with the hard issues last. Here are three more valuable counterintuitive strategies for negotiations.

1. Don’t look at the person who is talking; look at the people who are listening. 

In group settings, people naturally tend to focus on the speaker. In a negotiation, that person commonly is a lawyer rather than a principal. He or she is trained to deliver a pitch or make an argument effectively. This includes not only speech, but also tone of voice, facial expressions, and body language. The negotiator is trying to control the message—and usually succeeds. Often, that is not a true reflection of their actual state of mind or your opposing party’s true settlement position.

So, focus your attention on key representatives of the opposing party other than the speaker. They are more likely to convey their true frame of mind through facial expressions and body language. Because they are not in the spotlight, their facial expressions and body language can be quite informative, like a “tell” in poker. Negotiation tells can be particularly valuable when someone other than the speaker is the true decision maker—for example, when the in-house client representative is calling the shots on settlement, even though the party’s lawyer does most of the talking.

2. Eat, drink, and be merry. 

It is important that the physical environment for a negotiation be comfortable.  How early should a session begin? Will the participants be sleepy? Is the room too hot or too cold? Is there adequate food and drink available to ensure that the participants will not be distracted by hunger or thirst?

But concerns about the physical environment go beyond avoiding negative distractions. Being a good host can enhance the negotiating atmosphere, encourage a spirit of good will, and smooth the path to compromise. A recent study concluded that eating while negotiating “offers profitable, measurable benefits through mutually productive discussions.”

I recall one mediator who brought in bowls of candy midafternoon, when people were getting tired and needed a pick-me-up. In addition to providing a jolt of energy, the candy allowed everyone to take a break from the intensity of negotiations, to step back and engage on a more personal level. People made small talk, relaxed for the moment, and joked about the candy. They even smiled a bit. When negotiations resumed, the tone was friendlier. While each side continued to press for the best deal, some posturing disappeared, and some hard lines softened. Breaking bread together is an ancient tradition common to virtually all cultures in all times. It fosters relationships, signals trust, and symbolizes the setting aside of weapons, rhetorical or otherwise. And it may trigger a biological response that promotes cooperation.

So make sure there is adequate food and drink when you negotiate. Serve lunch, and take a break from negotiations to share the meal with the other side.  It may be more efficient for the parties to eat in separate caucus rooms, but it is an enormous missed opportunity. Start a half-day negotiation before lunch, or end it after lunch, not the opposite, as so often happens. If negotiations are at an impasse or tensions are high, go out for drinks, or even dinner at a nice restaurant.

3. Channel your inner Seinfeld.

Humor serves many of the same purposes as breaking bread together. It humanizes the process. It dissipates built-up tension. It gives the participants a short break from the mental and even physical rigors of negotiation and allows them to return to that process feeling refreshed and relaxed.

But the deft use of humor can serve other purposes as well. Sometimes a humorous remark can be the most effective way to make a point. Of course, there is a danger here, too, because an attempt at humor can descend into sarcasm, alienating the target and undermining negotiations.

Telling jokes is a great way to bolster the negotiation process. They don’t have to be pertinent to the negotiation itself, although it can be helpful to know some jokes that will fit your typical negotiations. For example, I spend a lot of my time negotiating with insurance companies, and I know an actuary joke that always brings down the house.

Telling a good joke can have a discernable impact on the dynamic of the negotiation. It allows you to take center stage and establishes you as a dominant force in the room. It will actually energize you. These effects can carry over quite favorably into the substantive negotiations that follow.

So learn some funny jokes. Keep them clean. Avoid anything that could offend. Practice, so you tell your jokes well. Then, when negotiations are stalled or tension is mounting, say the magic words, “Did you hear the one about . . .”

How To Negotiate Your Salary

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How To Negotiate Your Salary

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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