OCTOBER 2019 | FIRST FOCUS

Negotiate to win

In their new book, “Negotiation Essentials for Lawyers,” Andrea Kupfer Schneider and Chris Honeyman took a very practical approach. It was to “take everything we have learned about negotiation, select only the parts that matter most to attorneys, and then make them as fast and easy as possible for very time-constrained legal practitioners to apply.”

Covering more than 50 key  topics, the authors relied upon experts from a variety of fields who contributed up-to-date research and theoretical advances in negotiation. Each chapter focuses on real-world advice — such as when it’s wise to apologize and what lawyers should consider before hiring an interpreter in an international dispute.

Schneider is a professor of law at Marquette University Law School in Milwaukee, where she teaches dispute resolution, negotiation, ethics and international conflict resolution. She also directs Marquette’s nationally ranked dispute resolution program. She is co-editor of the recently published “The Negotiator’s Desk Reference” among her numerous other books and articles.

Honeyman is managing partner of Convenor Conflict Management, a consulting firm based in Washington, D.C. Besides co-editing “The Negotiator’s Desk Reference,” he has authored more than 100 published articles, book chapters and monographs; and has served as a neutral in more than 2,000 cases.

YourABA caught up with Schneider and Honeyman to find out more:

What are some skills negotiators should have?

Negotiators need to adapt to the situation, and understand that certain situations require different negotiation styles rather than assuming one style fits all contexts and clients.  Implementing the right skill in the right context requires both insight and experience. The beauty of this book is that we try to take lots of different theories and show how these theories translate into skills that lawyers can use every day. One whole section addresses the ability to effectively communicate with your client and your counterpart, with seven chapters on different methods. Another key section discusses different ways to persuade—from listening carefully to asking the right questions to reading body language and nonverbal communication. 

What are some of the strategies for choosing the most effective communication for negotiating?

Negotiations in today’s world take place in a myriad of ways, including face-to-face, via e-mail (addressed by law professor Noam Ebner in his chapter), over the phone and online.  This latter mode is often used on-the-fly and without much advance strategizing, for parts of a larger discussion that don’t look important at first glance – but they may be. Online negotiation has become so ubiquitous, in fact, that multiple chapters are devoted to skills we need to communicate effectively online and what that means for us in terms of attention, distraction and negotiation. Each mode of communication can impact the relationship, trust and outcome and, as outlined by Ebner, we should be aware of both the pros and cons of any particular mode. Furthermore, as addressed by co-author Andrea Schneider and practitioner Sean McCarthy, negotiators also need to be aware of their own “defaults” in addition to strengths in communicating, as well as those of their counterparts. Do you check text messages or email first on your smartphone? Is texting too informal with this counterpart? Do you need a record of your communication? All of these questions are worth considering during the negotiation.

What can a negotiator do if they just don’t trust the other party?

While trust between negotiators can help smooth the interaction, two of our chapters look specifically at what happens when trust is lacking. Business school professor Roy Lewicki’s chapter, “Trust and Trust Repair,” discusses how to build trust with the other parties, how to monitor your own as well as others’ trustworthiness and how to repair trust if that becomes necessary. 

Yet perhaps trust is unrealistic. Former hostage negotiator and diplomat Moty Cristal discusses how to negotiate “When There’s No Trust.” He parses the difference between trust and respect, noting that these are two distinct concepts. He argues that we can still negotiate and reach agreement, as long as we replace trust with respect. 

How can lawyers effectively negotiate with someone from a different culture?

Negotiating with someone who is different from you is usually considered more challenging, either because of the potential for miscommunication or because of the risk that stereotypes and assumptions can impact our effectiveness. The book addresses these issues directly with chapters on culture, as well as gender. In “Reflecting on Negotiating While Black,” professor Michael Green provides recommendations to all parties, based on numerous studies, of how to manage both the risk of being unfairly treated and that of treating others unfairly based on assumptions. He notes that the literature surrounding race also suggests that the techniques discussed in his chapter should translate well to almost any negotiation where a power imbalance exists and societal stereotypes can prevail. This is not the only chapter on “difference”: we also have chapters on negotiations across international cultures (African as well as Chinese), and a chapter on negotiating with people who reveal a quite different kind of “difference”: mental illness.

So, what can lawyers learn from hostage negotiators?

Some of our chapters focus on contexts—and lessons from those contexts—that might seem counterintuitive.  For example, in hostage negotiations, the parties involved are strangers.  In contrast, many legal negotiations involve lawyers—and often clients—who have worked together for years. Yet a cross-disciplinary team, including two successive chief hostage negotiators of the New York Police Department, shows how “Negotiating with the Unknown” can happen to a lawyer too.

And in “What Lawyers Can Learn from Hostage Negotiators,” communications professor William Donohue examines what lessons are translatable. He points out that lawyers can learn how to uncover and unpack substantive issues like money or personal rights when the parties don’t know each other. Hostage negotiators manage emotion and information exchange by slowing down and carefully listening to the hostage takers. Lawyers can also learn from hostage negotiators how to understand their own biases, and how these assumptions can affect their ability to negotiate in tense situations. 

In a related chapter, “Dealing with Amygdala Hijack: Lessons from the Martial Arts,” law professor Joel Lee and former NYPD detective James Shanahan discuss what lawyers can learn from the martial arts, including breathing and calming exercises to help you focus on the issues rather than the stressors.

How might ambiguity help get a deal done?

As mediator and co-author Chris Honeyman discusses in “The Discreet Charm of Ambiguity,” ambiguity can be used to moderate otherwise unacceptable risks in negotiations. For example, an ambiguous word in the agreement may allow the moderate-minded members of a negotiating team to fashion a workable approach to a problem when more radical members are trying to undermine any possible agreement. The key to using ambiguity is to understand how the ambiguity will be applied in practice – and that depends on how the agreement will be enforced. While ambiguity might just be the grease that gets the deal done, it can have risks. Negotiators need to be able to analyze whether any subsidiary disputes from the ambiguity will likely be manageable.

What are some strategies to use when negotiations are deadlocked?

At the end of the book we have several chapters focused on finishing the deal. For example, with no less than 17 different methods to close the deal, Australian law professor John Wade challenges us to get past deadlock in his chapter, “Being Both a Doberman and a Diplomat: How to Reopen Deadlocked Negotiations.” His suggested methods include flexibility on specific solutions, clearly rejecting unacceptable past solutions, rewarding helpful incentives, using intermediaries and making a formal claim. Wade also discusses the potential disadvantages to each of these methods, so you can evaluate which one might be best in your situation.