5 Ways to Screw Up Your Negotiation

Here are 5 things you or your lawyer can fail to do that are guaranteed to make it harder for you to get a good result from your negotiation:

1.  Fail to prepare.

For heaven’s sake, do your homework. In my experience the vast majority of parties fail to prepare properly to for negotiation. You need to know your BATNA cold, and you need to have a good handle on what the other party’s BATNA is too. You need to envision alternatives, and options that might meet some of the interests of both parties. If you don’t know what BATNA is, and many professionals don’t, then you’d better hope the folks on the other side of the table don’t know either.  http://www.scottflegal.com/preparation-is-all-about-batna/

2.   Fail to avoid the insult zone with your first demand or offer.

Any decent negotiator understands the importance of anchoring. In theory, by making a high demand, you “anchor” the other party with a high number, thereby making them more likely to overpay from a psychological standpoint. Conversely, lowball offers are often made to anchor the other party in the low zone. But if your demand is ridiculously high, or your offer ridiculously low, you can poison the negotiation. Rational, planned and meaningful anchoring is one thing. Immediately making the other side walk out and file suit is another.

3.  Fail to recognize that you’re not arguing your case to a judge in court.

The party on the other side of the table disagrees with you. That’s why you’re negotiating. The party on the other side of the table is not a judge, charged with the task of remaining neutral, listening to testimony and then making the right decision. He or she is not there to be convinced. If you or your lawyer thinks that arguing the strength of your case as zealously as possible is going to convince the other side to cave into your demands, you are sorely mistaken. You’re not in court. To negotiate well you must appreciate the value of listening carefully and actively; of empathizing with the other party; and of demonstrating that you are even capable of changing your mind under the right circumstances. You’ll get better results.

4.  Fail to respect the process.

Lawyers, in particular, love to cut to the chase. Why waste a lot of time talking about past history? Let’s keep the emotion out of this, because this is about business. If you hear these words coming from your lawyer’s mouth, find a new lawyer. Negotiation is always about emotion, and I don’t care what the dispute or situation might be about. Negotiation, to be successful, needs to be structured and respected by the parties. If all the parties do is exchange offers and demands, a lot of value gets left on the table. If the parties refuse to devote time and resources to the exercise, the exercise is undermined.

5.  Fail to remember that both you and your lawyer are human beings.

As human beings, we are all hard-wired to overestimate the strength of our case or argument, and to underestimate the strength of our opponent’s case or argument. Remember this as you head into the negotiation. You need to be realistic. If your lawyers tell you that ANY legal issue is a slam dunk, don’t believe them. A surprising number of slam dunks are missed, even in the NBA. Your expert is never as strong as you think. The expert for the other side is never as bad as your lawyers might portray them. And don’t blame the lawyers for this. They’re only human too.