Everyone who has studied negotiation in the last twenty years has read *Getting to Yes* and understands that they should be looking for a “win-win” result, ways to expand the pie and create value in the process.

Everyone who has studied negotiation in the last twenty years has read Getting to Yes and understands that they should be looking for a “win-win” result, ways to expand the pie and create value in the process. And, indeed, law schools across the nation are teaching the future of the legal profession that problem-solving collaboration is the most effective way to go.

Notwithstanding that, there are competitive negotiators among us who don’t mind if the “Other” wins a little, as long as they themselves win all that their client wants and then some. (I use the word “Other” to signify simply that the person is a person with his or her own perspective of the problems, interests and needs; not an adversary out to get you, not a friend to cherish, just not you; this is true whether you choose to be a cooperative negotiator or a competitive one.) Both negotiators can be effective and both have a place in the construction world. This discussion, however, explores collaborative negotiation and leaves competitive negotiation for another day if only because the research to date shows that most negotiators today approach negotiating collaboratively. More importantly, it is far easier to be an effective problem-solving collaborative negotiator than an effective competitive one.

Looking at the Data.

In the early eighties, Professor Gerald R. Williams asked negotiators, after a negotiation, to rank the Other, their goals and their attributes. (No one sat in during the negotiations and objectively measured behaviors. All reports emanated from untrained lay hindsight.) Sixty-five percent of the negotiators were reported to be cooperative problem-solvers, twenty-four percent competitive adversarials, and the rest could not be readily classified. Of the cooperative problem-solvers, only 3 percent were rated “ineffective.” Fifty-nine percent were rated as “average” and thirty-eight percent were labeled “effective.”

Competitive adversarials did not fare as well: thirty-three percent were judged as “ineffective” versus 3 percent of the cooperative problem-solvers. Even those competitive adversarials rated “effective” did not stack up as well as their cooperative problem-solving counterparts (twenty-five percent were judged “effective” versus fifty-nine percent of cooperatives). Whether effectiveness was a function of the process of coming to agreement or the result of coming to agreement was not explored. What is clear is that cooperative problem-solvers had a better chance of being perceived as “effective” or even as “average” with ninety-seven percent of them getting positive reviews as opposed to the sixty-seven percent of the competitive adversarial negotiators.

Twenty years later, after law schools began imbuing their students with Getting to Yes and after years of old-fashioned civility in our society taking a beating, Andrea Schneider found adversarials on even shakier ground. Fewer in number than in the Williams’ study, fully fifty-three percent of them were rated ineffective in the Schneider study as compared to thirty-three percent twenty years earlier. And the descriptors of the style of the ineffective adversarial competitors were even more telling. They were described as:

  • Viewing the case narrowly

  • Bargaining in a positional manner

  • Not seeming to feel the need to work with the Other

  • Unreasonable

  • Having an inaccurate estimation of the value of the case

  • Concerned with improving reputation within the firm

  • Low on legal skills

In other words, what we at the Forum would call bad lawyers.

But where do we begin learning how to be effective problem-solving cooperative negotiators? Getting to Yes, as good as it is – and it is very good – is mired in theory with less insight into the behaviors of effective negotiators. For this insight we have to turn to one of the first studies where trained observers actually sat in on negotiations and measured what the negotiators were doing, before and during the negotiation, to reach settlements that would stand the tests of time. These researchers, led by Neil Rackham, found that expert negotiators plan and communicate differently than average negotiators -the difference is measurable; it can be learned.

Rackham defined experts as negotiators who 1) routinely came to agreement; 2) shaped agreements that were routinely implemented successfully; and 3) who left the negotiation table with the Other willing to negotiate with them again. Average negotiators lacked one or more of the three measures. For example, some could come to agreement, but their agreements were not always successfully implemented. Others could come to agreement, but their Other did not want to negotiate again.

Rackham’s success measures should be the goal of every construction attorney today as each of our negotiated agreements may take years for their successful implementation. We want our Others to be willing to negotiate with us again, because they are going to have to, unless one of us opts for court over the negotiation table. Moreover, our professional market is so small and so talkative that our personal reputations are one of the most significant assets we bring to the table. The more we are perceived as empathetic, creative, personable and prepared advocates, as well as competent, candid, and concerned, the easier it will be for the Others we meet to say “yes”.

Effective problem-solving cooperatives enter the negotiation with a whole lot of strategic and tactical thinking already done, so they can react flexibly and concentrate on listening with the goal of understanding. They have sussed out their own interests and made efforts to figure out the interests of the Other. They know what they very much need and what concessions they can readily make. They have even figured out their best alternative to a negotiated agreement (BATNA) and the possible BATNAs of the Other. Not only that, they know what gives them leverage and they have defined ways to strengthen that leverage in the eyes of the Other. They even recognize what can do them in and they have thought of clever and credible ways to undermine those weaknesses in the eyes of the Other, maybe even turning them into strengths in the process. They have even thought through settlement options just as thoroughly.

Why so much emphasis on preparation? Because they know, as Rackham’s findings proved, that they who prepare best, most deeply and most broadly, usually “win.” They get their clients’ interests met. Think about it. What does solid preparation provide the problem-solving negotiator? First, it gives them a better understanding of the problem facing them. They know the strengths and weaknesses of their perspective as well as those of the Other. It also gives them a game plan that permits them to set their perspective aside and listen understandingly, especially for new information, and respond empathetically to the Other. That comprehension, in turn, gives them leverage which, if joined with creative option building, enhances their chances of, at worst, negotiating a result that leaves no one worse off because they chose to settle and, at best, crafting a deal that will benefit all at the table, especially their own client.

Besides preparation is there anything else that expert problem-solving cooperative negotiators do to enhance their chance of success? Most certainly, and here are a few of the most salient.

Experts face negotiation as a problem solving event

Unlike many an ineffective negotiator who views the Other as either a friend to be won over or as an adversary to be beaten, effective cooperative negotiators focus their energies first and foremost on solving the problem that got their clients to the negotiation table in the first place. Yes, they take into account the personhood of the Other, and yes, they care that the Other’s interests are met, as both regard and responsiveness are required for the successful implementation of any negotiated agreement. Both parties have to decide to buy into the agreement and both have to want the agreement to succeed. However, the cooperative negotiators know that, even if all the regard and respect the Other wants is given, if the problem that brought the parties to the table isn’t well-addressed and wisely resolved, any resulting “agreement” will fall apart. They may not know when: maybe during the negotiation, maybe during the contract term. They may not know where: maybe in the field, maybe in the courtroom. But, fall apart it will, as any negotiated agreement that fails to solve the problem that caused the negotiations, meeting the critical interests of the parties in the process, is no agreement at all.

Hence, the effective cooperative asks at all times, “How will what I am proposing solve the problem?” As Rackham puts it, “Average negotiators focus on getting an agreement, expert negotiators focus on getting an agreement that will implement successfully.” And, if any challenge to the Other is going to be rendered, it will probably be phrased in some form of this: “How is what I am hearing being proposed going to solve the problem?”

Experts focus first on building common ground

Average negotiators, even when they focus on the problem that brings them to the negotiation table, address their differences first. Expert negotiators do not, choosing instead to identify common ground. They recognize human realities. If they allow the Other to focus on only their differences, those differences can become stronger, even taking on exaggerated necessity and meaning. But, if they develop the ground on which they are seeking to build an agreement so that it is equally inviting, the more likely all parties will agree to build. Moreover, starting with common ground creates a climate of acceptance. Parties feel respected and conclude that their needs will be respected and their interests met. Experts accordingly work to develop shared interests, mutual needs, and reciprocated benefits, knowing that each piece of sod added to their common ground will induce the Other to seek out and offer one more piece, minimizing the necessity of the Other’s need to maintain their differences.

This is the approach that Senator George Mitchell reportedly took when facilitating the negotiation in Northern Ireland. Well aware that all parties were deeply entrenched in their positions, the Senator spent the first year of the negotiations helping each party recognize the humanity of the other. People ate dinner together, went to each other’s children’s sporting events, saw movies and discussed them, and through this process they learned how very much all parties had in common. This permitted them to reframe their argument from one of sheer power politics to one of shared economic interdependency, embedding their future across-the-table negotiations deeply in common ground.

Recognize the psychology inherent in this approach and appreciate its power. Once people get used to making agreements, no matter how small any one agreement may be, they get committed to making agreements. They even start helping each other out to that end. “Would it help you if…” “What would happen if we both…” “How would you like to try out this approach and see where it gets us…” And slowly, in this way, they find themselves sitting on the same side of the table with the problem on the other side, shared and facing them both equally. In time, as two heads are better than one, a resolution of all the issues becomes possible.

Experts do not fear differences

Experts do not pretend common ground exists when there isn’t any and they don’t hide show-stoppers when there is one. They recognize there are indeed some negotiations where one issue is a deal breaker, and it makes limited sense to spend hours building common ground to have that deal breaker destroy the effort in the last moments. But they also know that bona fide deal breakers are not the norm in most negotiations. Rather, the reality is that the parties have real differences between them and those differences compel them to argue, but they can be worked out.

Experts use these differences to build common ground and, for that reason, they welcome them. In fact, they use them to trade. It is the old story of “I want the inside of the orange to make juice” and “You want the outside of the orange to make chocolate orange peel” that excites their imagination. Finding the differences that meet critical, albeit diverse, interests is what unleashes the expert negotiator’s ability to create value.

Experts communicate specially, transmitting information in a way that will allow it to be received

When Rackham sat in on negotiations, he measured discrete communication behaviors that fell into three primary categories:

Initiating

  • Making a Proposal

  • Building on the Proposals of Another

Reacting

  • Supporting

  • Disagreeing

  • Defending/Attacking

Clarifying

  • Testing for Understanding

  • Summarizing

  • Seeking Information

  • Giving Information

Also noted were two additional behaviors observed mostly in group interactions: bringing in, that is soliciting input; and shutting out, that is interrupting, cutting off and the like.

Some negotiators relied primarily on Proposing, Giving Information, and Shutting Out to get across their ideas. Others used those three behaviors in part, but relied mostly on Building on the Proposal of Another, Testing for Understanding, and Seeking Information to persuade. The difference was so measurable that Rackham could classify the two respectively as “Pushers” and “Pullers.” Both types of persuaders enjoyed successes, but the expert negotiators most often fell into the Puller category. These negotiators used communication behaviors to help the Other persuade themselves. In other words, if there were any persuading to be done of the Other, the Other was the one who was helped to do it.

Unconvinced about the value of Pulling? Let’s return to the data. Research shows that twenty percent of an expert negotiators’ behavior revolves around using questions; they seek information from the Other nearly three times more often than the average negotiator. Ten percent of their behavior has them testing for understanding more than twice as often as the average negotiator. That means at least fully a third of their behaviors involve pulling. When they do make statements, some 8 percent of their behavior involves summarizing what they heard the other say. And they use this summarizing, a clarifying technique, nearly twice as often as the average negotiator. Putting those percentages all together, some forty percent of expert negotiators’ behavior involves clarifying the other’s thinking twice as much as average negotiators’ behavior.

Why do expert negotiators rely so heavily on questions and other clarifying behaviors? For many reasons. Perhaps the most compelling is that questions help you persuade the Other. Test it out in the quiet of your home. Try to alter your significant other’s behavior by telling him (or her) what to do.

Experts manage the need for both assertiveness and empathy

I teach negotiations at George Washington University Law School, and one of the hardest things for students to learn is that, if they want to be effective cooperative negotiators, they need to be both assertive about the interests of their client and empathetic to the interests of the Other. Failure at either makes reaching a negotiated agreement all the harder. Without assertiveness, the Other can never fully appreciate the needs of your client. Without empathy, you can never fully understand the needs of the Other, and without that knowledge you will always be unsure what to concede, what to propose, and what to shy away from. Effecting the appropriate balance – what Robert H. Mnookin, Scott R. Peppet, and Andrew S. Tulumello in their brilliant book, Beyond Winning: Negotiating To Create Value In Deals And Disputes, call “managing the tension” between assertiveness and empathy – is the hallmark of effective cooperative negotiators. They know when to listen and when to speak. That ability, to respond flexibly, is one of their many talents. It is with adequate preparation and sufficient practice, at appropriately applying all of the communication behaviors discussed above, that skill more readily comes.

Experts use ranges

One other indicator of expert flexibility is that expert negotiators approach the negotiation table with ranges in mind. Average negotiators don’t. They have a fixed figure in their head and if they don’t get that figure they have, by definition, failed. Expert negotiators don’t tap dance on their brain that way whether before, during, or after the negotiation. They come to the negotiation table prepared to craft a wise outcome that meets the long and short-term interests of the parties, an agreement that will last the tests of time. They know that standing in cement will not help them move.

How do they set ranges? Do they go to the tippy-top of their utmost hopes or do they start near the bottom of the range continuum, expecting, or at least hoping, that the Other will see that their low offer is reasonable and snap it up without question? Experts do neither and the research explains why.

Experts know there are dangers lurking in the outside contours of any range. They know that, if you start too high, the Other may just get up and go. You may be viewed as arrogant, aggressive, competitive, and worse, even clueless. And once you realize you are way out of the Other’s ball park, you have to walk yourself or drop, at which point your credibility drops with you. All in all, you haven’t helped your client. You have just succeeded in making them vulnerable to the competition and, for that matter, you, too.

Is it better to start really low on the continuum, close to your walk-away point? That proves problematic as well. A too low offer can be read as a stab of desperation or naiveté. Interestingly enough, if the Other stays believing you just don’t get it, the research shows that one of the reasons they stay is to see just how low you will go. Too low offers just encourage the Other to seek even greater concessions. The problem is, if that happens, you have nowhere to go. You have already kissed your client’s margins.

Yes, but what about everything you’ve read that says an extreme offer elicits the highest settlement? You have to place that insight into perspective. What the writer is not telling you is that extreme offers, when they fail to be bought, usually end up in a negotiation deadlock. Is it worth the gamble? Extreme offer and win big, but only some of the time. And, if it is worth it, how do you know when the time for the extreme offer has come?

What do experts think? They don’t think. They strategize. Experts set for themselves a settlement box what Mnookin et al call a “zone of possible agreement.” On each negotiable item, whether the item involves money, conduct, or something else altogether, expert negotiators set for each item a starting point, a target point, and a resistance point-a point at which they and their client will walk away. For their starting point, they shape a proposal that may be optimistic, possibly very optimistic, but one for which they can give a compelling and believable reason. In so doing, they tap into the advantages of an extreme opening offer without trapping themselves in the process.

Not only do expert negotiators plan ranges, they also plan their concessions. Indeed, for them the issue is not so much who made the first offer, but who made the first concession. They know that research shows that the first conceders are often the losers in the negotiation process, especially if they drop fast and far to stay in the game. Hence, each concession the expert negotiator makes is reasoned and that reason and the basis behind it is communicated when the concession is made. Further, whenever possible a quid is exacted for every quo conceded. “In light of what you just told me (new information), if you can do “X,” I can do “Y.” In this way expert negotiators protect their clients from the feeding frenzy surrounding inartfully made concessions.

In some very real ways, this is brain surgery. Experts base their starting, target, and reservation points and their concessions on a solid grasp of the strengths and weaknesses of their case and that of the Other, as well as on a broad and deep mastery of the contours of the market and a nuanced appreciation of the short and long-term value their client brings to the table. And they do not do it alone. They do it with their client, as legal ethics make clear the shape of any settlement is for the client to determine.

Before they involve their client in their estimations though, experts repeat the same thinking, this time from the vantage of the Other. They know that the Other is going through the same exercise in an effort to set their settlement box. So the expert stands in their shoes, trying to figure out with whatever information they have what the Other’s starting point, target point, and resistance point may be, for armed with that knowledge, the expert can knowingly advise their client what a good settlement may look like.

How do they do that? They take the information they have collected and tested to the extent that any information unilaterally devised can be tested – and lay it out as follows:

{diagram}

It is the area that lies between the two resistance points that is of most interest to them, for within this area both parties can find room to settle. Are the resistance points close to each other and the settlement zone tight? Could be problematic if both parties hold on to their guns; everyone will get shot. However, if counsel can maintain their heads, they can point out that the costs of walking away probably exceed the costs of getting closer. Are the resistance points spread? Now is the time to start thinking creatively with the goal of not just closing the gap, but of creating value in the process.

Yes, you ask, but what happens when only one of the parties has a settlement box in mind? When the Other just walks in with one demand and no range in his head? In some ways that situation is the best situation for a problem-solving cooperative negotiator to face. Here these negotiators can use all their skills: understanding, persuasion, education, creativity and more to figure out how the Other perceives the situation, where their needs and interests rest. In this way the cooperative negotiator can propose the contours of a settlement box with sufficient room for all to live.

Experts have BATNAs which permit them to convey that, while they are ready and willing to reach a mutually acceptable settlement, they are prepared and able to walk if that settlement can’t be reached

If there is one thing expert negotiators have that buoys their leverage it is the knowledge that they and their client will do just fine if no negotiated agreement is reached. They come to this leverage by nourishing the Best Alternative they have To a Negotiated Agreement. Indeed, they work on strengthening their BATNA as much as they do deepening their preparation and negotiation strategy. Does the Other sense that? No study has measured that yet, but our common sense tells us that when a quietly confident negotiator signals that they don’t have to agree, the Other rethinks the strength of his stance.

Given all that has been written on the power of cooperative negotiation and the ease at which one can pick up the skills and practice them, cooperative problem-solving seems today more than ever the more profitable way to go for both clients and the attorneys who represent them. So try it, and, if it doesn’t work for you, keep your eyes out for my next article on effective competitive negotiators.

A teacher of negotiations at the George Washington University Law School, Ava J. Abramowitz serves as a mediator. Formerly AIA deputy general counsel and vice president of Victor O. Schinnerer & Company, Inc., Ms. Abramowitz is the author of The Architect’s Essentials of Contract Negotiation. She is a founding fellow of the American College of Construction Lawyers and has served on the National Architectural Accrediting Board.

If your reading time is limited, here are a few of the best books on negotiation.

  1. Getting to Yes: Negotiating Agreement Without Giving In. Roger Fisher and William Ury (Boston: Houghton Mifflin, 1981).

  2. Beyond Winning: Negotiating To Create Value In Deals and Disputes. Robert H. Mnookin, Scott R. Peppet, and Andrew S. Tulumello (Cambridge: Harvard University Press, 2000).

  3. Effective Legal Negotiation and Settlement. Charles B. Craver (New York: Matthew Bender & Company, Inc. 2005).

  4. The Fast Forward MBA in Negotiating and Deal Making. Roy J. Lewicki and Alexander Hiam (New York: John Wiley & Sons, Inc. 1999).

  5. Spin(r) Selling. Neil Rackham. (New York: McGraw Hill, Inc., 1988).

  6. Difficult Conversations. Douglas Stone, Bruce Patton and Sheila Heen (New York: Penguin Books, 1999).

  7. Women Don’t Ask: Negotiation and the Gender Divide. Linda Babcock and Sara Laschever (New York: Princeton University Press, 2003).

  8. Bargaining for Advantage. G. Richard Shell (New York: Viking, 1999).

  9. Thinking Strategically: The Competitive Edge in Business, Politics, and Everyday Life. Avinash K. Dixit and Barry J. Nalebuff. (New York: W.W. Norton & Company, 1991).

  10. The Trusted Advisor. David H. Maister, Charles H. Green and Robert M. Galford (New York: The Free Press, 2000).

And, of course:

The Architect’s Essentials of Contract Negotiation. Ava J. Abramowitz, Esq. (New York: John Wiley & Sons, 2002).