The following are helpful steps or work to do before you start to negotiate. The list is not exclusively for those in a lawsuit or going to mediation. You can use all these ideas in most situations where you need to work with another person to resolve any type of problem, conflict, or difference of opinion.
1. What are your goals? What are the more important, true priorities, and what are lesser goals, which you can give away or not pursue further? What do you need? But be realistic
2. Do your homework. Know the topic. Mediators in the legal world are rarely true generalists. Typically, they are more specialized for a type of mediation. For example, a mediator who knows commercial leases will likely be better for a dispute or alleged breach of contract related to a shopping center store than would a mediator who knows personal injury/tort law.) In the same way, if you are an attorney or advocate for someone, you ought to know the legal issues of your case with the same experience and expertise. Know or learn the broader issues and nuances and everything else relevant that influences the outcome or success, and the consequences or future implications of a resolution.
3. Ask: Ask for what you want and be ambitious/optimistic. If you ask for something, you might get it. But if you don’t ask for something, you will not likely get it.
4. Listen: During the dialogue (the give and take/back and forth/push and pull) of a negotiation, whether it is formal Mediation or a personal exchange, pay attention. Speak less. (Some have suggested a 70/30 Rule–listen 70 percent of the time, talk only 30 percent of the time.) Encourage the other negotiator to talk by asking lots of open-ended questions, which can’t be answered with a simple “yes” or “no.” You can learn the other person’s priorities and goals, and what are vital or inconsequential to them. Are their demands important or will they give up some to get what they really want?
5. Do more homework: Know the other party(s). What is their position? Is it valid? What does the other party need? Is there something demanded that you can satisfy? And does the other person have a particular motive or emotional component they need to agree to for a deal to come together? Remember, no one will get everything he/she wants. This may be an emotional issue, not a rational/numbers issue. Let the other side know they can meet their needs. This is the win/win solution.
6. Who has leverage? If the other side makes legitimate points, acknowledge them. Consider famed trial lawyer Gerry Spence’s premise: fight for what you need to fight for and let go of the rest. Don’t waste time on the undisputed issues. Concede legitimate points.
7. Always be willing to walk away.
8. Don’t be in a hurry. Patience. There is (almost) always tomorrow. Then again, sometimes, there is no tomorrow. If today is your only real hope, you have to be ready with your best effort right now, before you leave. Stay until you finish the deal.
9. Be aware of the other side’s practice or method in negotiations, or leading up to negotiations/mediation. How are they presenting there position? Is there posturing, manipulating, etc.? And be honest about their clues–do they have leverage, are they right, wrong, or unfocused and undisciplined? Anticipate their responses to your arguments or points. This is like playing chess.
10. Don’t give anything away for free. And give to get. And do not negotiate against yourself. If you are bringing the claim, you usually start with a demand. Then there is a counter offer. Wait for that before you respond. Don’t move again until you hear a revised (lower) proposal. This is like call and response. Then another call and response.
11. Don’t take the issues or the other person’s behavior personally.
12. Be creative. If you were negotiating a compensation package, remember there are probably about 25 components to compensation. If you can’t get the salary, maybe you can get the better office, better health coverage, parking spot, transportation concessions, a greater contribution to a retirement plan, a raise in six months, stock in the company, an expense account, more vacation time, a better title, etc.
WHO DRAFTS THE agreement? The devil is in the details.
13. Hire a good lawyer.
Bonus: Being a good negotiator can also help you in your personal life. You might negotiate which event or entertainment to see with friends, which restaurant to eat at, splitting up chores around the house, price for an item you purchase, who picks up the check (or splitting it), etc.
There you have a starter kit on negotiating. Go out there and give and take. And get to a resolution that gives you what you need.