Prof. Ralph Cagle
University of Wisconsin Law School
"So let us begin anew—remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear. But let us never fear to negotiate. Let both sides explore what problems unite us instead of belaboring those problems which divide us.
. . . . .
And if a beachhead of cooperation may push back the jungle of suspicion, let both sides join in creating a new endeavor, not a new balance of power, but a new world of law, where the strong are just and the weak secure and the peace preserved."
– President John F. Kennedy - January 20, 1961
1. Negotiation opportunities. People don’t always see the opportunities presented by negotiation in the professional, social, economic, and personal interactions of their lives. Some avoid negotiations, due to a preference for other strategies, or because they feel they are not sufficiently trained or skilled to succeed, or from fear of conflict.
Conflict is inevitable in negotiation, including those negotiations which can generate mutually beneficial outcomes. Conflict might pose danger, but it also presents opportunities. Conflict can damage relationships, but when managed well, can strengthen or even save a relationship. Conflict can teach and lead to personal growth.
2. Why people negotiate. People negotiate because they recognize that others have or can access what they want or need (“interests” in the language of negotiation). And, all things considered, negotiation is the better way to satisfy their interests.
In identifying the central role of interests in negotiation, I avoided the use of the more narrow, self interest. There is a long-standing and lively debate among psychologists, philosophers, sociologists, and even geneticists about whether human behavior is fully explained by the pursuit of self interest or whether humans are genuinely capable of, if not wired for, genuine altruism. We all have our view on how others balance self-interest and unselfishness and this view heavily influences how we choose to interact in negotiation. For me, I choose to allow for the possibility that my behavior might make unselfishness a satisfying response for my counterpart.
3. Alternatives to negotiation. People have alternatives to get what they want or need by:
a) Independence. Self-sufficiency without resorting to interacting with others (“I can do it myself”)
b) Dependence. Hoping/waiting for ones’ needs or wants to be met by voluntary benevolence or altruism. (“ I have always relied on the kindness of strangers.”)
c) Contest. Structured competition for fixed resources (such as athletic competition, or a trial to a jury)
d) Dominance. Controlling or coercing the behavior of others who are vulnerable, who can be intimidated, or who may fear any conflict. (“ I take what I want. You get what I give you”).
e) Interdependence. Any behavior, such as negotiation, mediation, or conciliation that involves communication, reciprocity and mutual consent. (“Come now, let us reason together”).
4. Knowing what people want or need. People have needs and even more wants. Peoples’ needs and wants fall into three broad categories:
a) people need or want stuff – which includes money (obviously), but also the tangibles that are attached to power, status, influence, and reputation;
b) people need or want others to behave in certain ways – usually in the form of cooperation or assistance with their goals; and
c) people need or want psychological or emotional needs met (even when they don’t know they have them).
The role emotions play in negotiation is often underestimated. Much of the “currency” that is or can be exchanged in negotiation derives from assessing and addressing the particular emotional needs of the parties or their negotiator- agents (See Satisfaction Principle, below).
5. Information is power; the handling of information is leverage. A tangible and influential factor in negotiation is information. What we know, don’t know, uncover, or reveal and how and when that all unfolds is usually crucial to negotiation success. The quality of information is also important. This includes its completeness, timeliness, accuracy, and authoritativeness.
The influence of information in negotiation is complicated by how information is weighted colored by the perceptions of the parties. In negotiation, perception not only trumps reality most of the time– perception is the reality. To navigate successfully in the negotiation environment, it is crucial to understand how perceptual screens influence how people see, understand, and act– including (and perhaps most challengingly) how perceptual screens influence how we see, understand and act.
6. The capabilities of successful negotiators. Some people consistently obtain favorable and sustainable terms and results in their negotiations. Some of you may be such negotiators. What do they (you) do that works so well? What can those not as consistently effective do to improve their outcomes?
There are no simple answers to those questions. What will breed success depends on how one manages the unique complex of forces in a particular negotiation. There are no established or accepted universal rules for negotiation success. Yet, there must be some things that are common to those who are consistently successful negotiators.
In my experience as a negotiator, a negotiation trainer and advisor, and as a student of negotiation behavior, I have seen some capabilities that successful negotiators consistently demonstrate. There may be more than those I describe here and we have to allow for the negotiator who seems to succeed by an idiosyncratic approach that shatters every sense of accepted practice if not civilized behavior. But in my observation, these eight capabilities are commonly demonstrated by successful negotiators.
NOTE: I added some questions under each described capability both for detail and for use in reviewing your negotiation performance, including reviewing “on the fly.”
Successful negotiators:
■ Prepare thoughtfully and thoroughly
Did I prepare systematically and completely? Did I foresee what happened? How could better preparation have made a difference?
■ Pay close attention to what is going on
Did I see significant developments as they unfolded including key changes? Did I hear what my counterpart said or did not say? Was I observant? Was I tuned into any “timing opportunity”? What may I have missed?
■ Build and maintain credibility
Was I truthful in dealing with my counterpart? When I stated something as a fact or took a firm position was it credible and believed? Was my demeanor seen as real or genuine?
■ Apply leverage creatively and appropriately
How well did I understand and use my leverage? Did I use it bluntly or subtly? Was it appropriate? Did I use it timely? Was I unable to use my leverage? Did I recognize and effectively counter my counterpart’s leverage? Did I use any leverage for common gains?
■ Attend to satisfying interests
How well did I identify my counterpart’s real interests? Did my counterpart walk away feeling their interests were understood and addressed? Was my counterpart sufficiently satisfied with the outcome that they are likely to honor the deal? Did I satisfy my client’s key interests? Will my principle see this as a good/great deal? Is it really a good/great deal?
■ Develop and utilize strategy
Did I create and implement an overall strategy targeted to the particulars of this negotiation? Did I develop and implement such an opening strategy? Was my overall strategy flexible enough to account for the unexpected? If the unexpected occurred, did I successfully adapt my strategy as needed?
■ Display self-control and confidence
Were my emotions and reactions tested by circumstances or the strategy and/or behavior of my counterpart? Was my behavior (and my affect) intentional ? Did I ever feel a loss of self- control? How well did I react when this happened? If I lost control, did I right myself quickly? Did I feel confident? If and when I did not feel confident, and was that apparent to my counterpart?
■ Convert experience into refined, practical knowledge
What did I learn about how to negotiate more effectively and about myself as a negotiator? How can I put that to use to help me in my future negotiations and other dealings?
WE WILL WORK TO DEVELOP UNDERSTANDING OF AND FACILITATE USING THESE CAPABILITIES IN THIS WORKSHOP.
7. How is success measured in a negotiation? First, it’s clear that results matter. A highly favorable outcome is an indicator of success. But, people tend –often need– to believe that they obtained great deals in their negotiations. Being persuaded (or perhaps fooled) to believe you got a great deal (even if it wasn’t) is a big risk.
One factor which contributes to the risk of overestimating the value of our negotiation outcomes is preparation built on our bottom line. Getting to or even near our bottom line is not the goal in negotiation even though there are times when such an outcome may be necessary. A more ambitious – and I think preferable– strategic standard to measure negotiation outcomes against is our optimal realistic outcome. What is the best outcome we can (or retrospectively could) achieve with peak performance? Research shows that negotiators who set, strategically pursue, and maintain optimal realistic outcomes consistently secure better negotiation results.
Success in a negotiation can involve other useful benefits other than maximized outcomes. Quality agreements may possess some of the following aspects: (a) the parties have a common understanding of the terms of the agreement; (b) the terms are comprehensive and complete; (c) nothing material was overlooked; (d) the agreement provides an optimal return on the parties’ investment; (e) the agreement anticipates and addresses potential implementation or enforcement issues; and (f) the agreement will endure–it is not so illusory or fragile that it can be broken or abandoned by any party. Whether or not agreement is reached, a negotiation can have benefit if it advances the ongoing relationship among the parties including the potential for further negotiations and deals or it contributes positively to our reputation within a community in which we will negotiate in the future.
8. Never accept that what you want is non- negotiable. There is a frequently used and often subtle tactic of dominance that smart negotiators anticipate and therefore cannot be fooled by. The tactic is to exploit a common perception that many things are just not negotiable (“It’s not an option”, “it has never been done”, “we can’t do that”, “that is not on the table”, ‘it’s not our policy,” “it’s too much trouble”, “it will create upset to raise that,” etc.). Falling prey to this tactic usually results in the perpetrator advancing their interest effortlessly at the expense of those unaware of the tactic or those unwilling to challenge the tactic.
The appropriate response to this tactic of dominance is to first recognize it (it can be very subtle) and then to counter it with a simple but powerful realization: everything you really want is negotiable – nothing is non-negotiable . Know this and act accordingly and the tactic loses all of its force. Expect the persons using the tactic to test your resolve. The strategy behind the principle is that most people will submit with little or no resistance. But, if you see this tactic and resist it sufficiently, the cost-benefit to the perpetrator will disappear. This one perspective and counter–tactic will expand your negotiating options and opportunities and prevent giving away what you have a legitimate claim to.
9. The Satisfaction Principle. People commit to a negotiated agreement when they feel their interests are sufficiently satisfied. Satisfaction is the belief that this is the best I can get out of this situation at this time with this person(s), given my available alternatives. Satisfaction is clearly perceptual. People will value the same offer, commodity, or alternative subjectively and hence almost always differently. Mutual satisfaction with a negotiated outcome does not mean equal satisfaction or equal outcomes. People’s capacity to be satisfied in a negotiation is closely tied to their expectations and their perceptions of their alternatives to a negotiated agreement.
Setting and maintaining highly favorable but realistic expectations for negotiated outcomes consistently results in more favorable results. A person can be satisfied with tangible and/or intangible rewards in a negotiation depending on how they value them as satisfying their needs, wants and concerns. Intangible rewards more typically have a higher value to the receiver and lower (or no) cost to the provider.
10. What you just don’t do. There are some things good negotiators don’t do. Some are foolish, some set you up for failure, and some are just despicable. In a negotiation, don’t: (a) lie; (b) gloat; (c) reveal (or withhold) information without a reason; (d) play “gotcha games;” (e) say “yes” too easily; (f) talk too much; (g) need to be liked (as opposed to being likable); (h) be unwilling or unable to walk away; (i) yield to threats, intimidation, or personal abuse; or (j) cause people to lose face.
Negotiation Works!
We all negotiate though not as much or as well as we could. We have been negotiators since our earliest ancestors realized that they were more likely to survive, if not prosper, if they worked together more and fought each other less.
We can get more of what we need and want at work, in the marketplace, in our personal relationships, and in the wider world when we can get others to commit to our well-being. We do this by providing others with perspectives and incentives that make that satisfying. Negotiation is that skill of wise living that secures our individual interests by recognizing and honoring our interdependence with others.
Good negotiators lead enhanced lives. They get more of what they need and want on better terms; feel
safer working with others from a standpoint of honesty, respect, and understanding; are better immunized from coercion and intimidation; have and display greater confidence; tend to be more trusted, respected and liked by others; manage conflict more constructively; and solve problems more effectively. People skilled as negotiators add value to their relationships, organizations, and communities.
Prof. Ralph Cagle
Law School
University of Wisconsin -Madison
975 Bascom Mall
Madison, WI 53706
Ph. (608) 262-7881
rmcagle@wisc.edu Rev. 9/08