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By Thomas Noble of Law Offices of Thomas Noble, P.C.
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CASES & CODES

Introduction PRACTICE MANAGEMENT
"A negotiation is an interactive communication process that may take place whenever we want something from LAWYER MARKETING
someone else or another person wants something from us."1
CAREER & EDUCATION
"Take it or leave it!" "This proposal is non-negotiable." "Don't ask me to go back to my client on this. This is all we THOMSON LEGAL RECORD
are going to do." "This is it. If you don't want to accept it at that price, forget it." "Negotiating with you is a waste JUSTICE MAIL
of time. We'll see you at the courthouse!" How do you feel when you hear statements like this? How do you feel NEWSLETTERS
when people are belligerent; when they hang up on you, literally or figuratively; when they let you know that they
do not want to have a dialogue with you about such ethereal subjects as your needs, interests, or concerns about a
proposal or a transaction? Ads by Goooooogle
Negotiation Skills
If you react negatively to ultimatums, inflexibility, and statements like those in the preceding paragraph, you may Executive course in
come to the realization that other people feel the same way. Unless you are in the military, or subject to some Geneva on negotiation
similar hierarchical organization, you will conclude that, if you want to have a relationship with the party on the skills and strategies.
graduateinstitute.ch/executive/
other side of the table or the other end of the phone, you must negotiate. Negotiation is unavoidable.

Most of us negotiate with one another frequently. Once we realize this, theoretically, we have two choices: accept
the fact that negotiation is a way of life in our culture and improve our skills so that we can negotiate with
confidence; or, do nothing about it. Some may argue that negotiation is an art, that it is intuitive; or, that we all
know how to negotiate, learning basic skills on the playgrounds of life. Perhaps there are naturally gifted
negotiators. But, as a lawyer and a mediator who has spent over 20 years litigating, negotiating settlements,
negotiating transactions for clients, and negotiating personal transactions, I can attest to the fact that a lot of
negotiators are not naturally gifted.

"... most people simply don't know how to negotiate. Our parents don't teach us how to negotiate, probably
because their parents didn't teach them how to negotiate. And despite the fact that negotiating is a vital skill, we're
taught nothing about it in school. That leads to the second reason there are so few negotiators: people don't think
it's possible to learn how to become one. Since we're not taught how to negotiate we just assume it cannot be
taught. The third, and I believe most powerful, reason is fear."2

We can all improve our skills as negotiators. But, how? Conjure up two individuals: the "Master Negotiator" and the
"Novice Negotiator". The Master Negotiator is not someone who works miracles, who can pull off remarkable
"swindles" or hypnotize his or her opponents into barking like dogs and doing other things that they would not
ordinarily do. The Master Negotiator is simply demonstratively better than the Novice Negotiator. The Master
Negotiator's skills are obvious. While he may not walk on water, he will consistently get the best deal possible
under the circumstances. On occasion, perhaps even frequently, he will get remarkably good results. Why?

What sets the Master Negotiator apart? Why do we consider him a master? What does he know that the rest of us
do not? What can we learn from him? My purpose is to address these questions and to provide some answers. My
hope is that, if we can observe how the masters do it, the rest of us will improve by following their examples. In
trying to formulate a picture of the Master Negotiator I have surveyed the current literature on the subject and
added my opinions based upon my own anecdotal research. I have concluded that Master Negotiators follow certain
rules that novices do not understand or that they do not implement. I have attempted to state these rules and
discuss their corollaries.

This is a work-in-progress. Interested readers can find a copy of this paper and all future evolutions on my web
site.

Fundamental Elements of the Negotiation Process

"... negotiations commonly follow a four-step path: preparation, information exchange, explicit bargaining, and
commitment. ... Negotiation is, in short, a kind of universal dance with four stages or steps. And it works best
when both parties are experienced dancers." 3

One of the interesting aspects to negotiation theory is that even the fundamental elements of the process are
subject to varying opinions. The quotation above breaks the process down into four phases. I prefer three. Let's
review the basics before moving on.

Phase I: Pre-bargaining Phase

1. Information: Learn as much as you can about the problem. What information do you need from the other side?
2. Leverage Evaluation: Evaluate your leverage and the other party's leverage at the outset. This is important
because there may be a number of things you can do to improve your leverage or diminish the leverage of the other
side. What will you do to enhance your leverage?

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3. Analysis: What are the issues?

4. Rapport:4 Establish rapport with your opponent(s). You need to determine early on if your opponents are going
to be cooperative; if not, consider employing a mediator as soon as practical.
5. Goals and expectations: Goals are one thing; expectations are something else.
6. Type of negotiation: What type of negotiation do you expect? Will this be highly competitive, cooperative, or
something unusual? Will you be negotiating face to face, by fax, through a mediator, or in some other manner?
7. Budget: Every negotiation has its costs. Lawyers will avoid conflicts with their clients by discussing budgets
sooner rather than later. Many times there are a number of choices for enhancing leverage. For example, you may
enhance your leverage by taking several depositions, by adding parties to a law suit, by serving subpoenas on
witnesses, or by hiring experts. Unless your client has unlimited resources, you will have to make some hard
choices, which should be designed to give you the "most bang for your buck".
8. Plan: What's your negotiation plan?

Phase II: Bargaining Phase

1. Logistics: When, where, and how will you negotiate? This can be especially important in multi-party cases.
2. Opening offers: What is the best offer you can justify? Should you make it, or wait to let another party go first?
3. Subsequent offers: How should you adjust your negotiating plan when responding to unanticipated moves by
your opponent?
4. Tactics: What sort of tactics will you employ? What sort of tactics is your opponent using on you?
5. Concessions: What concessions will you make? How will you make them?
6. Resolution: What is the best way to resolve the problem? Is there an elegant solution? Be on constant lookout for
compromise and creative solutions.

Phase III: Closure Phase

1. Logistics: How and when will you close? At mediation or later on? Who will prepare the final agreement?
2. Documentation: Prepare a closing checklist.
3. Emotional closure: It's one thing to end a legal dispute; it's another to address the underlying interests and
needs of the parties. If you neglect the latter, the agreement will probably not sustain.
4. Implementation: It's not over until it is over.

Some of these elements are self-explanatory and elementary. I address the others below.

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

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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 dickering 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

Rule 2: Communication Skills

Rule 2.1: Lines of communication are critical.

Without lines of communication there can be no negotiation. Therefore, this rule is essential. Lines of
communication are the life-blood of a negotiation.8 Master Negotiators understand this; novices do not. Novice
Negotiators often focus on static elements of the problem, believe that they are "playing a winning hand", and
throw down the gauntlet, only to learn later that the dynamic elements of the situation have changed, their
leverage has withered, and they have burned their bridges.

Master Negotiators nurture their lines of communication. Where lines are weak, they seek to develop new lines.

To ease the stress of negotiating and improve the chances for a successful result, establish rapport with your
opponent, and build on that foundation. This is especially important in cases where the parties will have a
long-term relationship after closure.

"What is the secret to creating and sustaining trust in negotiation? A simple but sturdy norm in human
behavior: the norm of reciprocity". 9

"Boiled down to its essence, the norm of reciprocity in negotiation amounts to a simple, three-step code of
conduct. First, you should always be trustworthy and reliable yourself. ... Second, you should be fair to those
who are fair to you. ... Third, you should let others know about it when you think they have treated you
unfairly. Unfair treatment, left unnoticed or unrequited, breeds exploitation - followed by resentment and the
ultimate collapse of the relationship." 10

"Generosity begets generosity. Fairness begets fairness. Unfairness ought to beget a firm response. That's the
norm of reciprocity in relationships. ... Always take turns. After you make a move, wait until the other party
reciprocates before you move again." 11

"Another time-tested way to encourage the delicate process of establishing trust in working relationships is to
give the other side something as a symbol of good faith. ... Behavioral economists have argued that gifts -
especially gifts between unrelated strangers - often serve as signals regarding intentions to invest in a future
relationship."12

If you find it hard to establish rapport with the unreasonable, rude SOB on the other end of the phone, don't give
up. There are a couple of things you can do. First, consider an "end run". For example, if you are an attorney, and
your opponent is an attorney, and you find it impossible to communicate with him or her, consider having your
client communicate with his client. Second, consider employing a mediator. Third, consider engaging another
lawyer who you know has good rapport with your opponent.

"... the best time for handling people problems is before they become people problems. This means building a
personal and organizational relationship with the other side that can cushion the people on each side against
the knocks of negotiation."13

Fisher and Ury tell us that "people problems" fall into three categories: perception, emotion, and communication. 14

"Facts, even if established, may do nothing to solve the problem." 15

They counsel us to "put yourself in their shoes". 16

"The ability to see the situation as the other side sees it, as difficult as it may be, is one of the most important
skills a negotiator can possess. ... To accomplish this task you should be prepared to withhold judgment for a
while as you 'try on' their views."17

Seek your opponent's advice concerning how to resolve the issue. You probably will not like what you hear, but he
or she will feel better about you because you inquired.

"Apart from the substantive merits, the feeling of participation in the process is perhaps the single most
important factor in determining whether a negotiator accepts a proposal. In a sense, the process is the

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product." 18

This rule suggests that intimidation tactics are ineffective, which, of course, is not true. Master Negotiators
understand, however, that persuasion is usually superior to intimidation as a negotiation tactic. If intimidation
"works", it only works when the negotiating playing field is skewed for some reason, where one party has so much
greater leverage than the other, that the interaction can scarcely be called a "negotiation". And, as every parent who
has raised a child to adolescence knows, intimidation almost always results in passive aggressive behavior and
resentment.

Rule 2.2: Be cooperative, but don't let your guard down.

Statistics show that cooperative negotiators are more effective than competitive negotiators. 19

"To negotiate well, you do not need to be tricky. But it helps to be alert and prudent. The best negotiators play
it straight, ask a lot of questions, listen carefully, and concentrate on what they and the other party are trying
to accomplish at the bargaining table."20

The Master Negotiator studies the terrain before settling into a negotiation. He understands that some negotiators
are cooperative and some are competitive. Being too cooperative with a highly competitive negotiator is a good way
to get plucked.

"... pursuing a soft and friendly form of positional bargaining makes you vulnerable to someone who plays a
hard game of positional bargaining. In positional bargaining, a hard game dominates a soft one."21

Rule 2.3: Listen.

"It is hard to overstate the importance of listening skills in bargaining. ... the best negotiators ... ask questions,
test for understanding, summarize discussions, and listen, listen, listen. ... You often get more by finding out
what the other person wants than you do by clever arguments supporting what you need."22

"Perhaps the best strategy to adopt while the other side lets off steam is to listen quietly without responding to
their attacks, and occasionally to ask the speaker to continue until he has spoken his last word. In this way,
you offer little support to the inflammatory substance, give the speaker every encouragement to speak himself
out, and leave little or no residue to fester." 23

"Listen actively and acknowledge what is being said. ... It has been said that the cheapest concession you can
make to the other side is to let them know that they have been heard. ... Standard techniques of good listening
are to pay close attention to what is said, to ask the other party to spell out carefully and clearly exactly what
they mean, and to request that ideas be repeated if there is any ambiguity or uncertainty. ... Unless you
acknowledge what they are saying and demonstrate that you understand them, they may believe you have not
heard them." 24

Rule 2.4: Pare down large groups.

Every negotiator confronts situations where each side is a committee, rather than an individual. This usually means
negotiations within negotiations, as the members of each committee or group have to negotiate an intra-
consensus before responding to the other side. If every member of every group has to put in his two cents before
you can respond to a proposal, the process is slow and tedious. This problem can often be remedied if each group
will appoint a representative.

"No matter how many people are involved in a negotiation, important decisions are typically made when no
more than two people are in the room."25

Rule 3: Planning

Rule 3.1: Develop a flexible negotiation plan.

"I am convinced that you need to approach each negotiation with a well conceived game plan." 26

Master Negotiators develop strategies for each phase of the negotiation process: opening, middle game, and end
game. Like master chess players, they come to the table knowing how they are going to open. They understand
that, from there, strategies have to be flexible because how their opponents respond to opening offers is
unpredictable. Nevertheless, they plan ahead as much as possible.

Freund suggests the follow simple format for developing a negotiating plan:

What do I want?
Where do I start?
When do I move?
How do I close? 27

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While a Novice Negotiator may do some planning, he does not plan thoroughly. For example, a Master Negotiator
will always develop a closing strategy. He knows whether he wants to close sooner rather than later and whether he
wants extensive documentation or if an outline of the deal will do.

Rule 3.2: Plan your first move carefully.

Initial offers define the parameters of the "negotiation zone". The negotiation zone is that range in which
negotiators bargain. In every negotiation the parties define the negotiation zone. You get to decide where one end
of the zone is located, and your opponent decides the other end. Master Negotiators understand that where
leverage is relatively equal, there is always a tendency to meet in the middle. Where the middle is ultimately located
depends on where they start. Therefore, they put a lot of time and energy to developing and justifying their initial
offers.

"As a rule, negotiators lead richer, fuller, more rewarding lives than non-negotiators. That's because in reaching
for more, they almost always get it." 28

Master Negotiators make the highest (or lowest, as the case may be) first offer they can justify, while being careful
not to go beyond that point. 29

"One of the cardinal rules of Power Negotiating is you should ask the other side for more than you expect to
get. ... What you should be asking for is your MPP - your maximum plausible position." 30

"... research on setting goals discloses a simple but powerful fact: The more specific your vision of what you
want and the more committed you are to that vision, the more likely you are to obtain it. ... Research on
negotiation confirms that anyone who is willing to take the time to develop higher expectations will do
significantly better and do so without putting his relationship or reputation with others at risk."31

" ... my general approach to the opening proposal lies well between the extremes of outrage and undue
moderation. I advise making a first offer that is sufficiently reasonable to be viewed constructively by the other
side and thus evoke a positive response. On the other hand, it should give you enough room to move
deliberately to your expectation without being forced to stretch."32

Justification is critical. Having a reason for every element of the offer greatly enhances its chances of success.
Research indicates that if you ask someone for a favor, he or she will be more likely to do it when you give him a
reason. 33

"To avoid appearing arbitrary, express a rationale for your position." 34

"Negotiating often comes down to a battle of cogency. The more logical your arguments in support of a point,
the greater your chances of resolving it on satisfactory terms." 35

"The starting point you select should always be defensible." 36

"I always caution my clients against putting a figure on the table that they can't back up with a plausible
rationale." 37

"The harder it is to come up with logic to support your position - the more you have to back into reasons that
leave you feeling uncomfortable - the more concerned you should be that your counterpart will perceive your
position as overreaching. So, developing a rationale furnishes a useful litmus test to determine whether the
position you're taking is defensible." 38

If I had to name the single most important rule for a negotiator to follow it would be this one. Where you start is
critical to where you wind up. If you start too high, your opponent will either be ridiculous to the other extreme, or
he will not talk to you. If you start too low, the bullies will kick sand in your face!

"The goal of an effective negotiator is to have expectations that are high enough to present a real challenge
but realistic enough to promote good working relationships. ... If you are basically a cooperative person, raise
your expectations. Respectfully ask for more. Insist a bit. You will be amazed at the results." 39

"The truly gifted negotiator, then, is one whose initial position is exaggerated enough to allow for a series of
concessions that will yield a desirable final offer from the opponent, yet is not so outlandish as to be seen as
illegitimate from the start." 40

Master Negotiators understand the law of contrast.41 At the end of the day, after concessions are made, the other
party will be satisfied with the deal only after the other party has made concessions. 42

Master Negotiators know when and when not to make a first offer. My daddy always taught me to never make the
first offer, but this is certainly not correct. There may be a number of good reasons to make the first offer,
including motivation, lack of leverage, superior information, and to take control of an issue such as price. 43

Master Negotiators know that first offers are almost artificially high. They do not get upset over that; they simply
respond appropriately.

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Rule 3.3: Goals are more important than bottom lines.

"What is the practical effect of having your bottom line become your dominant reference point in a negotiation?
Over a lifetime of negotiating, your results will tend to hover at a point just above this minimum acceptable
level. ... With experience, you should be able to keep both your goal and your bottom line in view at the same
time without losing your goal focus. Research suggests that the best negotiators have this ability."44

"Your goal is only as effective as your commitment to it. ... you should make sure it is justified and supported
by solid arguments." 45

Rule 3.4: Plan to make concessions.

Making concessions triggers the law of reciprocity.46 When you make a concession, the other party will usually
respond with one. Indeed, he will feel compelled to do so.47 The flip side of this rule is that when you do someone
a favor, they will feel indebted to you for it.48

"Most of us find it highly disagreeable to be in a state of obligation. It weighs heavily on us and demands to be
removed."49

"People need to feel that they have 'earned' concessions even when you are willing to give them away for free."
50

"You are not going to prevail on all issues that arise in a negotiation, so save yourself for the significant ones.
Let your counterpart take home a few trophies, too, especially on issues that aren't that important to you or
where the point he is making is unassailable." 51

"... I'm convinced there's a vital psychological dimension here. Each party needs to experience the satisfaction
of seeing the other side move, in order to feel that the resulting agreement has been adequately bargained.
Your refusal to budge will leave your counterpart with a nagging sense of having failed as a negotiator, an
ominous mind-set that is potentially hazardous to the deal."52

Rule 3.5: Understand when and how to mediate.

Master Negotiators know when a mediator will facilitate settlement and when a mediator is unnecessary. Master
Negotiators know when arbitration is preferable to going to court.

Novice Negotiators wait too long before employing a mediator. They let problems fester and parties become too
invested in their positions. By the time they get around to mediation, they have wasted considerable resources and
the momentum toward trial is formidable. The time to mediate is as soon as the negotiations founder, in cases
where the parties employ a mediator out of necessity, or as soon as all parties have enough information to bargain
intelligently, in cases where they are mediating by choice (because that is their preferred method of negotiating).

Master Negotiators are usually master manipulators, and mediation is no exception. Novices come to mediation
and act combative with the mediator or exclude the mediator from all relevant discussions, relegating the mediator
to the function of courier. Master Negotiators understand that the mediator can help them sell their proposals.
They arm the mediator with persuasive arguments, legal briefs, or material evidence in support of their proposals.
They add a dash of charm and encourage their clients to endear himself or herself to the mediator.

Rule 3.5: Have a theme.

Lawyers who argue their cases to juries know the importance of having a simple, unifying theme. Johnnie Cochran's
theme in the O.J. Simpson murder trial of "if it doesn't fit, you must acquit" is a sound example. Master Negotiators
understand that this same technique works in negotiations.

"A positioning theme is a crisp, memorable phrase or framework that defines the problem you are attempting
to solve in the negotiation".53

Rule 4: Evaluation

Rule 4.1: Look beneath the surface.

Novice Negotiators focus on facts, or dollar amounts, or legal issues, or personalities. Master Negotiators
understand that every negotiation is a combination of these factors, as well as others.

"... skilled negotiators see more than just opening offers, counteroffers, and closing moves when they look at
what happens at the bargaining table. They see psychological and strategic currents that are running just below
the surface. They notice where the parties stand in terms of the reciprocity norm. They look for opportunities
to use what psychologists call the consistency principle to commit other parties to standards and then hold
them to their prior statements and positions, and they know that the timing of a proposal is always as
important as its content." 54

"So when you formulate your goals, consider carefully what really matters to you. Sure, money is important. But
identify your underlying interests and needs clearly."55

Rule 4.2: Break the problem up into issues.

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Every negotiation involves one or more problems, or "issues", which can be sub-divided when necessary, to make
the negotiation more manageable and to allow for partial agreements.

If there are multiple issues, look for trade-offs.

"you gain credence for your inflexibility on a few choice issues by your willingness to give ground on the rest."
56

Fisher and Ury discuss methods of negotiating. They argue that their model of "principled negotiation" is superior
to the traditional method of "positional bargaining" in which the parties take positions and then make concessions
to reach agreements.

"The method of principled negotiation developed by the Harvard Negotiation Project is to decide issues on their
merits rather than through the haggling process focused on what each side says it will do and won't do. It
suggests that you look for mutual gains wherever possible, and that where your interests conflict, you should
insist that the result be based on some fair standards independent of the will of either side. The method of
principled negotiation is hard on the merits, soft on the people." 57

Rule 4.3: Look for multiple solutions.

Master Negotiators do not look for the truth or the right answer. They explore options. They know that there are
usually a number of workable solutions to the problems that vex us in our social interaction. Finding out what
those solutions are may take a little work, and, even though a solution may be workable, it will not necessarily be
palatable to everyone. Nevertheless, Master Negotiators know that, once they get an understanding of the whys
and wherefores of each party's "positions", more often than not, there will be several options for bridging the gap,
solving the problem, or resolving the issue.

"... effective negotiators care about being 'fair', but they also are assertive about their goals. They push the
other party to find the best solutions, not just the simplest compromises". 58

Rule 4.4: Evaluate people, interests, options, and criteria.

Fisher and Ury summarize their method of principled negotiation as follows:

"People: Separate the people from the problem.

Interests: Focus on interests, not positions.
Options: Generate a variety of possibilities before deciding what to do.
Criteria: Insist that the result be based on some objective standard." 59

"Begin your preparation for negotiation by considering your own underlying needs and interests".60

Many people fight over money. But, money usually symbolizes something else. Is "feeling like a winner" what it is
really all about? Is it feeling like you are being treated fairly? Look behind the money. You will find a lot of solutions
there.

"Begin your preparation for negotiation by considering your own underlying needs and interests."61

Rule 4.5: Evaluate the leverage.

"The first basic skill of smart negotiating is an awareness of the leverage factors at work, plus the ability to
apply leverage when it's in your favor and make do when it's not."62

Leverage is negotiating power, plain and simple.63 It is the gas in your tank. If you have no leverage, you are at the
mercy of your opponent. Master Negotiators understand leverage. They know how to develop it and use it to
maximum advantage. They know that if they do not use it when they have it, it may not be worth as much
tomorrow. Leverage has a way of evaporating. Master Negotiators understand that leverage is wonderful, but if you
don't use it, you will probably lose it.

Freund lists common leverage factors as: necessity, desire, competition, and time.64 These factors usually come
along with the deal; they are intrinsic to it. If someone steals your car, and you need another right away, you have
less leverage than the person who can wait a month or two to see if the market will soften. If you fall in love with a
Porsche, you have less leverage than the person who can live without one. If three people want to buy your house,
you have a lot more leverage than if no one will even stop to look. If you have to get that premarital agreement
signed because the wedding is tomorrow morning, you do not have as much leverage as you did a month ago.

"It's the ability to walk away from the table if acceptable terms can't be worked out that puts backbone into
your bargaining posture." 65

Because leverage is rarely static, you can usually enhance your leverage, or develop leverage where you had none,
through:

1. preparation,66

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2. information,
3. number-crunching,
4. understanding your opponent,
5. exploring and developing other options,
6. timing, and
7. patience.

"The research on the importance of preparation is extensive. Nearly every research study on negotiation has
confirmed its importance".67

"Good negotiators are patient, exercising a healthy dose of self-control." 68

"The most common mistake I observe (and am guilty of myself on occasion) is giving in to a sense of
impatience, satisfying the need many of us feel for instant gratification." 69

Shell discusses what he calls "normative leverage". He defines this as "the skillful use of standards, norms, and
coherent positioning to gain advantage or protect a position." 70

"You maximize your normative leverage when the standards, norms, and themes you assert are ones the other
party views as legitimate and relevant to the resolution of your differences. The best practice is therefore to
anticipate the other side's preferred standards and frame your proposal within them. If you cannot do this,
prepare to argue for a special exception to his standard based upon the special facts of your case. Attack his
standard only as a last resort." 71

"By positioning your needs within the normative framework the other party uses to make decisions, you show
him respect and, as a result, gain his attention and sympathy." 72

"Standards and norms have power in negotiation in part because they carry an authoritative message about
what the market, the experts, or society has determined to be a fair and reasonable price or practice. ...
Psychologists have discovered a form fact about human nature: We are inclined to defer to authority."73

In fact, if we were searching for the definition of the Novice Negotiator, we could simply say that he is one who
ignores leverage. While he knows something about the problem, he is relatively unprepared. He is either scared to
crunch numbers or is inept in that regard. He gives little thought to his opponent. He fails to explore and develop
other options. He does not consider the timing of his proposals or responding to the other party's proposals. Or, he
does not exhibit the patience required to close the deal.

Master Negotiators crunch numbers. They know the actual costs of doing the deal, and the actual costs of not
doing the deal. They can calculate present values, if need be. And, they understand the tax consequences of the
transaction.

Rule 4.5: Consider the "consistency principle".

Master negotiators understand the "consistency principle"74 , which states that we all have a strong psychological
need to be consistent with our prior acts and statements. If you are looking for tactics you can use to manipulate
your opponent, consider trying to hook him with some small commitment and then following up with a larger
request.

"The goal of the consistency trap is to precommit you to a seemingly innocent standard and then confront you
with the logical implications of the standard in a particular case - implications that actually turn out to run
against your interests. This is a form of intellectual coercion, and you should be ready to defend against it". 75

For example, if you are in a negotiation over child support, and you represent the Mom seeking child support above
the norm, consider asking the Dad something like, "You don't want the children to suffer because of this divorce
you wanted, do you Mr. Jones?" If he takes the bait, the follow up questions might be: "And, you know how it
would affect them if their lifestyle was substantially reduced?" "And, you know what that lifestyle costs?" "You've
always been generous with them haven't you?"

This concept may have a material effect on your negotiating strategy. In a fight over money, when they are not
getting as much as they want, Novice Negotiators often react by accusing their opponent of being a skinflint or a
cheapskate or by threatening him with going to trial if he does not loosen up. Although counter-intuitive, it may be
much more effective to remind the skinflint of all of his generous past acts so that he will act consistently with a
pattern of generosity.

The consistency principle can also be invoked in order to persuade an opponent to act consistently with established
standards and norms.

Rule 5: Closure

Rule 5.1: Don't blow the end game.

Master Negotiators know how to close. They consider every element of closure: when, where, documentation,
pending issues. Novices either rush the end game or delay it interminably, with equally bad results. Rushing the end
game usually means slapping a contract together with little time or thought; its ambiguities and deficiencies
inevitably result in disputes. Delaying the end game means failing to "strike when the iron is hot"; if you wait long
enough, something will happen to prevent closure. Time kills deals.

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Rule 5.2: Strive for a "wise agreement".

"Any Method of Negotiation may be fairly judged by three criteria: It should produce a wise agreement. It
should be efficient. And it should improve or at least not damage the relationship between the parties. (A wise
agreement can be defined as one that meets the legitimate interests of each side to the extent possible,
resolves the conflicting interests fairly, is durable, and takes community interests into account). ... Arguing over
positions produces unwise agreements. ... As more attention is paid to positions, less attention is devoted to
meeting the underlying concerns of the parties." 76

Rule 5.3: Pay attention to details, but don't sweat the small stuff.

Here, again, the middle way is the correct path. You can kill a deal by being too particular just like you can by
delaying closure. Master Negotiators are careful about closing, but they do not let petty issues prevent closing.

"Don't fuss with minutiae. Let your counterpart take home some trinkets, even where both the leverage and the
logic are on your side."77

Rule 5.4: Don't neglect emotional closure.

Lawyers are great at analyzing legal issues, negotiating agreements, and closing agreements concerning legal
issues. But, in situations where people will have a relationship after they sign the agreement, they would be smart
to make sure that they have tended to the emotional issues, otherwise the legal agreement may suffer the
consequences of any structure with a faulty foundation. Many times, especially in family disputes, agreements
addressing emotional issues can be, and should be, intricate and involved. But, as Fisher and Ury advise, "an
apology may be one of the least costly and most rewarding investments you can make". 78

Basic Elements: Checklist

Phase I: Pre-bargaining Phase

Information
Leverage
Issues
Rapport
Goals and expectations
Type of negotiation
Budget
Plan

Phase II: Bargaining Phase

Logistics
Opening offer
Subsequent offers
Tactics
Concessions
Resolution

Phase III: Closure Phase

Logistics
Closing checklist
Emotional closure
Implementation

Negotiation Checklist

Confirm with other parties (and mediator)

Confirm logistics with client

Pack:

Files: pleadings, evidence, current matters

Books
Checklists
Laptop/printer/paper/ink cartridge
Calculator
Check for mediator?
Trial notebook

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Calendar
Notepad/pen/highlighter/post-it notes/file folders/misc.

Analysis:

Review Chronology
Review prior settlement proposals
List Issues
Strengths and weaknesses
Review and organize docs
Review discovery responses (incl depos)
Marshall Evidence re each issue
Review legal research
Negotiating Strategy
Opening offer
Concessions
Closing strategy

Document preparation:

Letter to mediator
Update Inventory?
Proposed Mediation Agreement/Decree
Spreadsheets
Disk (issues/spreadsheets/agreement)
Questions
Waiver of Discovery

Works Consulted

Bargaining for Advantage: Negotiation Strategies for Reasonable People, by G. Richard Shell.

Deal Power: 6 Foolproof Steps to Making Deals of Any Size by Marc Diener.

Getting Past No: Negotiating Your Way From Confrontation to Cooperation, by William Ury.

Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher and William Ury.

Influence: The Psychology of Persuasion, by Robert B. Cialdini (Rev. Ed., 1993).

Legal Negotiation in a Nutshell, by Larry L. Teply.

Secrets of Power Negotiating: Inside Secrets from a Master Negotiator, by Roger Dawson.

Smart Negotiating: How to Make Good Deals in the Real World, by James C. Freund.

The Negotiation Tool Kit by Roger J. Volkema.

The Power of Negotiating: Strategies for Success by Mike R. Stark.

The Tao of Negotiation by Joel Edelman and Mary Beth Crain.

The Total Negotiator by Stephen M. Pollan and Mark Levine.

ENDNOTES

1 Shell, p.6.
2 Pollan and Levine, p.7.
3 Shell, p.6
4 "... you must get into the habit of reviewing the relationship factor as a routine part of effective negotiation
planning." Shell, p. 63.
5 Shell, p.15.
6 Dawson, p. 19.
7 Freund, p. 24.
8 Teply, p. 4.
9 Shell, p. 59.
10 Shell, p. 61.
11 Shell, p. 63.
12 Shell, p. 69.
13 Fisher and Ury, Getting to Yes, p. 36, 37.
14 Fisher and Ury, Getting to Yes, p. 22.
15 Id. at 22.
16 Id. at 23.
17 Id.
18 Id. at 28.
19 Shell, p. 13.

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20 Shell, p. xiv.
21 Fisher and Ury, Getting to Yes, p. 8.
22 Shell, p. 17.
23 Fisher and Ury, Getting to Yes, p. 31.
24 Id., at 34.
25 Id., at 36.
26 Freund, p. 23.
27 Freund, p. 92.
28 Pollan and Levine, p. 7.
29 Fisher and Ury, who are trying to discourage anything that smacks of "positional bargaining" correctly point
out that "The more extreme the opening positions and the smaller the concessions, the more time and effort it
will take to discover whether or not agreement is possible." (Getting to Yes, p. 6.).
30 Dawson, p. 13.
31 Shell, p. 24.
32 Freund, p. 119. I am not sure that a first offer that evokes a negative response is not preferable in some
cases.
33 Cialdini, p. 4.
34 Freund, p. 47.
35 Freund, p. 73.
36 Freund, p. 95.
37 Freund, p. 119.
38 Freund, p. 123.
39 Shell, p. 16, 17.
40 Cialdini, p. 40.
41 Cialdini, p. 12.
42 Cialdini, p. 50.
43 Freund, p. 114.
44 Shell, p. 29.
45 Shell, p. 34.
46 Cialdini, p. 18.
47 Cialdini, p. 37.
48 Cialdini, p. 30.
49 Cialdini, p. 35.
50 Shell, p. xiv.
51 Freund, p. 82.
52 Freund, p. 113.
53 Shell, p. 51.
54 Shell, p. xiv.
55 Shell, p. 31.
56 Freund, p. 70.
57 Fisher and Ury, Getting to Yes, p. xviii.
58 Shell, p. 67.
59 Fisher and Ury, Getting to Yes, p. 10.
60 Shell, p. 30.
61 Shell, p. 30.
62 Freund, p. 54.
63 According to Freund (p. 33), the "four basic skills of smart negotiating" are: leverage, information,

credibility, and judgment.

64 Freund, p. 43.
65 Freund, p. 43, 44.
66 "...one of the principal shared characteristics of legal negotiators who are viewed as effective is that they are

prepared". (Teply, p.9).

67 Shell, p. 15.
68 Freund, p. 80.
69 Freund, p. 88.
70 Shell, p. 43.
71 Id.
72 Shell, p. 45.
73 Shell, p. 53.
74 Shell refers to this concept as the "consistency trap" (p. 45). 75 Shell, p. 45.
76 Fisher and Ury, Getting to Yes, p. 4,5.
77 Freund, p. 88.
78 Fisher and Ury, Getting to Yes, p. 32.

© 2001 Law Offices of Thomas Noble, P.C.

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