Getting to Yes.

I found the classic book, Getting to Yes: Negotiating Agreement Without Giving In, on my bookshelf last week, and I read it again. Considering that less than 1% of civil lawsuits in Multnomah County, Oregon result in a trial by jury, every trial attorney needs to negotiate effectively. I have the second edition, written by Fisher, Ury and Patton of the Harvard Negotiation Project. This post highlights the key concepts in their approach.

The authors urge negotiators to reject bargaining over “positions.” A “position” refers to a statement such as “I will take no less than $100.” If that is true and if the buyer cannot pay $100, then there is no point in negotiating. On the other hand, if the person – secretly – would take $60, then staking out the position of no less than $100 could prevent a favorable settlement, especially if the other person is prepared to pay up to $95.

But if price seems to be the only thing over which to bargain, then what can negotiators do other than toss out numbers and try to bluff the other side as to the price they’d actually pay or accept? The authors set forth a four-part process.

First, separate the people from the problem. We need to deal with both. The above “problem” to be solved could be stated as follows: “I’d like to sell this item, and you desire to buy it. How can we come up with an acceptable price.” However, If a negotiator stakes out a position such as “no less than $100,” then we need to deal with the issue of him defending his position and his integrity. In my law practice, we often need to address the real emotions of my clients for which there is no dollar value. The failure to address “people” and “problem” as real and separate issues can confuse the process and lead to failure or less-satisfactory results.

Second, one needs to identify interests. At first glance, there seems to be nothing to discuss other than price: I want to pay less and you want to receive more. But further discussions might reveal other interests. For example, the buyer might not have more than $50 now, but will receive some money after he sells something. The seller might want to delay receipt of income until January 1. The buyer might need to spend money on shipping. The Seller might have regular delivery routes.

By identifying interests, negotiators then move into the third phase of the method: invent options for mutual gain. In this example, the options become apparent: consider payments over time and discounted or free delivery. Nevertheless, there is still the issue of price.

Here is where the authors insist on developing and using objective criteria instead of just talking tough. If the seller says, “It was my grandfathers, I cannot sell it for less than $100,” The buyer must refocus to, “I understand, but let’s determine what is a fair price for non-related people.” [I’ve used my own examples in this post, not the authors’.] Bargain over the process: how one can we determine a fair market value that we each might be able to accept. Try to get commitments on process. This avoids taking a position and then defending it. Agreeing on an objective process does not, necessarily, bind the parties to the result of the process, although that is a possible solution, too. The authors point out that the more negotiators can separate ego and feelings from an objective process, the better the chance of agreement.

The authors acknowledge that not everyone wants to “play” their game of negotiating over principles instead of positions. They discuss the concept of hard and soft negotiation and offer suggestions on how to deal with different situations.

I’m glad I re-read the book. It is a good reminder of how to move negotiations forward when things bog down. Attorneys who represent people need to be especially well versed in negotiation tactics because most people have only negotiated car purchases. By contrast, insurance company claims adjusters negotiate all the time. Insurance companies know the tricks. Consequently, to achieve fair value for a claim, people need to make sure their own attorney is skilled at preparing for settlement discussions and negotiating.

Jeff Merrick
Originally Posted 11/1/2011

Jeff Merrick