Secrets to Advanced Negotiating

Keith Black

Being able to negotiate is a critical part of being an attorney. Most people frame a negotiation as either “won” or “lost.” I do not think one party has to win a negotiation and one party must lose. On the contrary, a successful negotiation should leave both sides feeling good (or at least not so bad, depending on the circumstances). If one party loses, then the whole point of collaborating is useless.

Following are three, seemingly obvious but often forgotten, tips to help you negotiate better.

Stop Acting Like a Show-Off

One of the greatest pieces of advice that I ever heard was to treat every interaction with another attorney as if I was being interviewed for a job. No doubt you won’t get along with every attorney you meet, just like you won’t get along with every person you meet. But being friendly with the other side, listening, and asking questions can engender a positive, working relationship.

If you receive a nasty email or decide you don’t really like the other side, at least be willing to work with opposing counsel (“with” being the operative word). Treat every interaction as if you are auditioning for a job at the opposing counsel’s firm. By doing so, you’ll learn to treat the other side respectfully, and your work will ultimately benefit. I like to frame every negotiation as just two parties working together toward resolution instead of two sides pushing against each other. Even if being friendly does not help you in the negotiation at hand, it might help you down the line on another, potentially unrelated, matter.

Shut Up and Listen

If there’s one thing I’m sure every lawyer likes, it’s the sound of her own voice. Don’t feel ashamed if this describes you—I’m the same way. Another thing I have discovered, however, is that in most negotiations, the other side simply wants to be heard. So here’s some advice: Learn to listen more and talk less.

Think about it this way: remember that person, not necessarily in law school, who never let you get a word in edgewise? He constantly chattered at you or interrupted you? Consider how he made you feel—probably somewhere between upset and angry.

The natural reaction of most of us is to fire back or perhaps dismiss out of hand the other person’s point of view—this knee-jerk response is part of the adversarial stance we are trained to take on in law school. Try to remember that as ridiculous and unreasonable a person’s point of view might appear to be—to that person, the idea is reasonable, and your opinion is ludicrous. I am not saying you will not encounter unreasonable and downright illogical points of view—you will. Be quiet anyway. Allow someone to speak his mind, and really listen to what he has to say. Appreciating another person’s point of view will make your negotiations much smoother.

Just Say Yes

A lot of what lawyers do is figure out solutions to disagreements. One way to find answers is to focus more on where you agree and not on your differences. Imagine, for a second, sending out an agreement and receiving a list of comments about why the other side hates everything you’ve written. Even if she agreed with a majority of what you have written, if she shines a light on what she does not like, it probably won’t get either of you closer to a deal. Instead, the negotiation is framed as adversarial when you want the negotiation to be framed as cooperative.

By focusing on where you agree with the other side, it allows the other side to feel heard. It also helps you rationalize your own thoughts and opinions. By thinking about what you can accept, you consider what it is you cannot accept, and more importantly, why you cannot accept such terms. It also makes the other side consider your objections in a more reasonable light. Not accepting anything out of hand might cause the other side to view all of your objections as unreasonable, but if you find common ground and show you are coming from a cooperative mind state, you might have a smoother road toward getting to an agreement that works for everyone.

These three basic tips—though somewhat obvious—are not always followed. By just adjusting toward the above mindset, you too can successfully negotiate with the best of them.


Keith Black

Keith Black is an intellectual property and entertainment attorney with American Greetings in New York, New York.