Watch your mouth

Watch your mouth, warns David Freedman. Your language just cost you that deal

Everybody can be irritating sometimes. We irritate friends, family, colleagues, legal adversaries, and (though we must always try not to) we sometimes even irritate our clients and prospective clients.

For solicitors in the execution of their daily operations or in the pursuit of new business development, it can be an expensive failing. If we can learn to become conscious of some of the more identifiable irritators, we can improve performance. This – we discovered through observational research many years ago – is particularly true when we negotiate. Training and further observation of successive generations have confirmed and consolidated this research, and now a new global study has amplified the core findings.

Negotiating badge of honour

As a non-lawyer who has recently spent some time in conversation with law firms about their business, one thing I’ve noticed is that lawyers spend a great deal of their time negotiating. It’s a badge of honour that you do it well. It’s part of your professional make-up. You negotiate contracts between your client and their commercial counterparty. You mediate divorces. You contest insurance cases. You try and get judges to interpret statute and case law your way rather than your opponent’s. You push for compromise settlements in industrial tribunals.
And those are just the things you do on behalf
of your clients.

Most solicitors have entire other realms of negotiating responsibilities. It crops up when, for instance, agreeing with an in-house counsel the commercial terms on which the firm will perform duties, what constitutes a chargeable matter, whether to base the relationship on chargeable hours or a project – and if the latter, which activities fall in scope. It arises when resolving an objection from an unhappy client. Or when a senior partner in a small or medium-sized local firm is faced with agreeing a salary and benefits package with a promising associate or agreeing a service level agreement with the supplier of a new practice management system.

Just as the law of torts, EU employment legislation, contract-drafting expertise or financial planning can be learned through appropriate training, so negotiation is a category of skill. There are proven effective and ineffective ways to do it, it can be learned by reference to a model of proven success, and the more it is coached and practised, the better you get at it. A very small number of people have the natural ability to get negotiating right with any degree of consistency – and it’s then no surprise to discover that they are the people who (unconsciously perhaps) match most closely what we know to be the skilled negotiator profile. Everyone else has to learn to do it consciously (at least to begin with).

Face-to-face failures

There are several components to that profile, and some of them involve skills in planning, preparation, understanding bargaining strategies, managing power in the negotiation and so forth. But by far the most important component, and one which truly differentiates the good from the average negotiator, is the use or avoidance of certain verbal behaviours when the negotiation moves away from the private formulation of arguments, and into the burning spotlight of a face-to-face exchange. This is where there is always too little time for thinking, but where a misplaced word or phrase or misconstrued sentiment can easily undo all the meticulous pre-work.

There are probably more myths, misapprehensions and mistakes surrounding negotiating skill than there are in any other area of face-to-face professional interaction. There are also more traps, and if the recent testimony from managing partners on this subject is any guide, they are traps into which lawyers – particularly more junior solicitors – unerringly fall. Why wouldn’t they? They are not generally trained to know any better.

The original skill model for negotiation was based on first-hand observation of what successful negotiators do and unsuccessful ones don’t. That model uncovered some surprising differences in the verbal behaviours used by those respective groups. For example, skilled negotiators are often quite open about their personal feelings at various stages in their discussions, which is not the common preconception of proficient negotiation style – which tends more to the stereotype of the guarded, poker faced, low reactor. And – until observational research proved otherwise – most people also assumed that there was nothing wrong with meeting a proposal in a negotiation with an immediate counterproposal. Our observational data undermined those assumptions and allowed us to reform negotiators’ skills accordingly.

Common traps

A new (summer/autumn 2014) study undertaken
by Huthwaite, involving 1,300 respondents in 52 countries, shows that most people who negotiate regularly still fall into the common traps. The new data (derived from self-analysis and scenario-based questioning) shows that the people who have these and about a dozen other classifiable flaws in their negotiation make-up continue to get less than ideal outcomes. Most people (56 per cent), by their own admission are not really successful negotiators. For example, there’s still too much counter-proposing (49 per cent of participants), and not enough questioning.

But perhaps the most eye-catching statistic in the new research concerns the use of what we term ‘irritators’. That word has a very specific meaning. What do we mean by it?

Self-praising irritants

The strict definition of an irritator is: “A behaviour that has the potential to irritate through self-praise and condescension.”

Into the self-praise category fall such easy throwaway remarks as: “It’s a very fair offer”, “I’m trying hard to be co-operative”, “I’m giving you a really competitive hourly rate”, “You know we’re worth it”, “Because we’ve always been one of your best customers”, or “I’m sure you’ll find we’re offering you a good basis for a settlement here”.These phrases are heavily loaded as a subjective self-analysis of the speaker’s own position. Words like ‘fair’ and ‘generous’ are relative; indeed if the other party to the negotiation interpreted the offer in the same way as the speaker, there would be no need for negotiation: there would be quick agreement and early drinks all-round. The fact that one party thinks their position is ‘equitable’ and the other thinks it isn’t, is at the heart of the problem, and there’s nothing >> >> to be gained merely by restating the original opinion – except further irritation. The implication of this self-praise is that the other person exhibits the inverse attributes to those that she is describing in herself.

Good lawyers deal in facts and evidence, and a statement that actually provides an evidence-based demonstration of the fairness or generosity of the offer (probably, but not always, in some measurable way), and shows how the other party is aided by it, is powerful. But the trouble is that if a negotiator has not planned adequately, or has not clearly understood the other party’s needs and objectives, then it is difficult to do this. And in the absence of a truly defensible position, unskilled negotiators unconsciously fall back on phrases that they think are harmless, but are really quite damaging. Some of the most common unconscious phrases (those we use all the time without thinking) are the most damaging. If I say, “I’m going to be honest with you” or, “Please, let me be frank now,” you have every right to wonder what I have been doing until now.

The condescending category is just as large. The phrase, “With the greatest of respect” usually means exactly the opposite, as most people are perfectly well aware. Equally, anyone who says, “I hear what you say” is probably being technically truthful, but just because they hear it doesn’t mean that they plan to listen to it, or take it seriously. These are phrases that are proxies for announcing the intention to stick to an entrenched position. They have the effect not only of giving both parties less room for manoeuvre, but also of making the other negotiator feel belittled and devalued, which is not a good basis for pursuing a win-win outcome. Still worse, “Please be reasonable,” carries within it the implicit suggestion that you are a reasonable person and they are not – which could be an impediment to easy agreement.

The fact is that skilled negotiators (that is to say, those who have a good record of implementable negotiated agreements) use irritators only 2.3 times per hour of face-to-face speaking time, compared to 10.8 times per hour among unskilled negotiators. We wondered if this finding would still ring true in the more inclusive and self-aware atmosphere of 2014. And indeed, when we completed the new global study, we discovered that 71 per cent of respondents would be only too happy to use irritators, and that 75 per cent actually did when presented with an opportunity to do so in a commercial scenario. Operations people fell into
the trap 83 per cent of the time, while CEOs (possibly more guarded about what they say and how they say it) did so only 62 per cent of the time. Although solicitors were not identified as a separate group in the survey, 73 per cent of people in professional services firms used an irritator, and 77 per cent of people who perform an in-house legal or financial role did likewise.

Perhaps the inference from that is that people with a high level of technical professional training, and who choose words carefully for the avoidance of legal or financial doubt, do not show any higher than average level of skill in their subconscious choice of language with regard to the psychological impact it might have on another party.

Making a scene

If these failings are potentially damaging in private, how much more harmful might they be if a complex and difficult argument is aired in the full glare of publicity? I’m thinking of negotiations between trade unions and management in a major industrial dispute (especially in the public sector). Or perhaps a set of ministers contesting EU versus national budget objectives, or resisting the dilution of national governmental powers. The research is relatively silent on this particular angle, but would advise negotiators in these circumstances that the biggest irritator of all is to tell radio or television audiences that the other side is being unreasonable, or that you are being fair. It’s like making one of
the most obvious mistakes you can make in a negotiation, and doing so with the volume
turned up to eleven.

The fact that 10 per cent fewer successful negotiators use irritators than the number of unsuccessful negotiators who do is perhaps encouraging, though I would argue that the overall tendency still shows the extent to which most people need training to prevent their instinctual responses from ruining an important deal at the negotiation stage.

But a one-off exposure to effective behaviours is not enough to change the behaviour. As the top musicians and sportspeople say: “I don’t practise until I get it right; I practise until I can’t get it wrong.” Some of these phraseological irritators are so ingrained that they need a very conscious effort to remove them. Set against the prospect of failing in a crucial negotiation – and letting your client, your firm and yourself down – it’s probably worth
the effort. SJ

David Freedman is associate director of Huthwaite International and has worked with some of the world's largest organisations on sell-side and buy-side negotiation skills projects. He heads Huthwaite's legal and professional services line of business

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