How to win friends and influence people

With recent changes to civil procedure and greater focus on alternative dispute resolution (ADR), lawyers need to improve their negotiation techniques.

Negotiation may seem a
world away from the courtroom, but successful negotiators are persuasive advocates and effective communicators, influencing and directing discussions towards the
most favourable outcome
for their party.

So, what are the techniques of successful negotiators and what behaviours should be avoided?

Positional bargaining is a competitive win/lose method of negotiation. Locked into positions, parties adopt artificially raised starting points, reaching agreement by concessions, like haggling in a market. This confrontational style is more likely to endanger relationships as parties do not work together
to find joint solutions.

In contrast, collaborative negotiation requires the cooperation of others, adopting
a problem-solving approach
to maximise the likelihood
of agreement.

Collaborative approach

Principled negotiation (a collaborative approach) was developed by Fisher and Ury at Harvard in 1981. They consider that negotiation should produce wise agreements, if agreement is possible, be efficient and should improve (or at least not damage) parties’ relationships (Fisher et al: Getting to Yes: Negotiating Agreements Without Giving In, third edition). They provide techniques designed to
preserve relationships, protect reputations and produce long-term outcomes.

By negotiating with courtesy and respect, and assessing problems on their merits, successful negotiators build
trust and relationships. Successful negotiators allow the other party to express emotion without reacting to outbursts.

Misunderstandings
are resolved by good communication. Actively listening encourages others
to address concerns. Inviting criticism helps to constructively develop further opportunities
for resolution. If negotiators are receptive and empathetic, others are more likely to listen to them.

Looking for opportunities to act inconsistently with the
other parties’ perceptions can
improve chances of agreement. For example, welcoming contributions and giving credit
to others’ good ideas can help
to save face.

Negotiators who pay little attention to others’ views prevent the possibility of learning from what is said. This restricts the ability to explore options or develop ideas as does arriving at the negotiation with
a predetermined bottom line. Preconceptions prevent benefitting from knowledge acquired during the negotiation.

To exert influence and control over the negotiation, negotiators must understand others’ views, not just their own. Questions enable negotiators to learn from others’ perspectives and to test whether their theory of the opposing view is correct. Questions provide thinking time and reduce talking time.

Negotiation is designed to serve interests, which can be wide ranging, and can include relationships, money and apologies. Successful negotiators identify negotiable issues and all parties’ interests to establish flexible options for resolving each issue; intended to fulfil the underlying needs of all.

To ascertain interests, parties need to strategically trade information. There is a fine balance between divulging too much information, without conceding points, and providing enough information to establish common needs.

Conflicting interests

A common misconception is
that conflicting interests are problematic; differences can result in solutions. A high benefit to one party may be a low concession to another,
creating mutual value.

Parties can be too committed to reaching agreement because of concerns about the consequences of failure. By considering the best alternatives to negotiation, proposals can be measured against alternatives to protect negotiators from giving in to pressures from a powerful opponent or accepting a
bad proposal.

When faced with a hostile opponent, the temptation is to react. Viewing others as difficult and judging their actions can encourage or worsen that behaviour. Instead, principled negotiators avoid personal insults or provocation and focus on the merits. This is more productive than attacking their approach, emphasising past failures or apportioning blame.

The best approach to negotiations is for parties to work together to find joint solutions and to reach mutually satisfactory agreements. Creating value, building trust and preserving relationships helps to produce better long-term agreements
and provides scope for
future relations.

Thinking creatively about resolution (and the alternatives) moves discussions towards a desired outcome. Working cooperatively is more likely to result in the interests of all parties being met or, at least, the best outcome achieved where all parties are satisfied.

In doing so, negotiators will meet their own parties’ interests and achieve the objective of
the negotiation. SJ

Carlyn Weale is a solicitor-advocate (higher courts civil-proceedings) at Davis Blank Furniss