How does one negotiate with a party who is not in the negotiation mood? It is a challenge.
First, get them to the negotiation table. Second, keep them at the negotiation table.
One needs to put on their critical thinking and creativity hats to persuade the hesitant party to come to the table and see the rewards of settling the issues.
Walk in Their Shoes
Possibly the first step for an effective negotiator is to examine the situation of a hesitant negotiator from their perspective; that is, to “walk in their shoes,” “walk in their moccasins,” or “put your head on their shoulders.” Imagine being in their place. What would be the reasons that they are reluctant to participate in a negotiation?
Bad Negotiation Experiences: Maybe, if enough research is accomplished or enough questions asked, one might find out that this party or this firm has had unpleasant negotiation experiences. Maybe, previously they negotiated with “a take no prisoners” or “win/lose” approach and maybe they even lost.
Maybe, they have not experienced a collaborative negotiation approach. Describing or showing this different negotiation approach might work.
Not Skilled in Negotiation: Maybe this particular party is not skilled in negotiation or conflict management. Providing a smooth step-by-step approach could be conducive.
Many Non-Negotiable Issues: Maybe the party, in their minds, have so many “non- negotiable” issues that they cannot see a way to compromise. Providing some creative options or ideas might be persuasive.
Sometimes people believe that by saying certain issues are off the table or non-negotiable makes them appear tough.
Use the Skill of Verbal Packaging or Reframing
Don’t call it negotiation. Often HR (human resource) directors will say,
We don’t negotiate salaries or benefits.
Possible response: OK, let’s talk. Let’s review and explain.
One of the Laws of Persuasion is Verbal Packaging (Celebrated Author Kurt Mortensen, 12 Laws of Persuasion) Words matter; so calling the negotiation a discussion or an explanation or a meeting might have a different impact.
Author Dr. Elain F. Re in her book 101 Secrets to Negotiation Success advises “Don’t use the word ‘negotiate” which is Secret #13. Maybe the term to some might sound adversarial or intimidating. She advises reframing:
“Let’s sit down and try to work this out."
“Let’s see if we can develop a solution that works for both of us.”
This reframing or rephrasing may create a more positive, friendlier, teamwork approach.
Is More Information Needed?
At first blush, this sounds odd. Doesn't the reluctant party with the situation know all the information? They may think they do, and they may see only one issue. If there is only one issue, is settling a mere matter of bargaining?
But, another view might reveal that there are multiple issues, so a give-and-take negotiation approach could work.
A vital component of the American Management Association (AMA) Negotiation course is the negotiation video: Sluggers Come Home. In this scenario, there appears to be only one issue: the price of the lease; but after several information exchanges, the parties realize that there are at least nine issue: parking, concessions, lease time period, cleaning, special events, etc. Suddenly, this situation transform from merely bargaining to give and take negotiation on the many issues.
(Stanford University Graduate Business School Professor Margaret Neale narrates, analyzes, and instructs the video).
People are often persuaded by the approach: WIIFM (What’s in it for me?) An effective negotiator can demonstrate to the hesitant negotiator the value of continued conversation and discussion. They can focus on the benefits the negotiation will have for the skeptical party. They can define what’s at stake. They can help to overcome the fears and the hesitancies of the other parties.
Different Assessment of Case
Sometimes, parties have a different assessment of the case. Maybe the negotiation skeptical party believes that if they went to court or arbitration, they would win. Many times, this assessment is unrealistic. Maybe they have not had enough experience with this particular type of case of the court of jurisdiction.
In many courts, after a case is filed, the court mandates good faith negotiation or mediation. This means that after much time and money the parties are right back at the negotiation time. An effective negotiator will help the parties understand how the local legal system actually works.
Sometimes the negotiation doubtful party has not handled many of these types of cases. Presenting this party with actual jury and/or judge verdicts for similar cases might motivate the party.
Finally, a dispute resolution process called Early Neutral Evaluation (ENE) may be helpful or even the mini-trial. In ENE, an expert in this particular sort of case gives their best legal and business opinion as to the value of this case. A mini-trial is an abbreviated trial consuming several days or several weeks. The so-called judge is often chosen by both parties. After hearing the best summary of each side, they will make a decision that is often advisory and then motivates parties to negotiate in good faith.
What is the Relationship Between the Attorney and the Client?
This is a very sensitive topic. If the other side is representing a client, an effective negotiator needs to inquire into this relationship. Oddly, sometimes the relationship between the client and the attorney is adversarial or maybe lacking trust.
Maybe this is where the dispute resolution process of mediation is helpful. Some people may not see mediation as “assisted negotiation” and so may distinguish between mediation and negotiation. In this sort of a case, the parties may prefer a directive sort of mediator rather than a facilitative one. A facilitative mediator may keep all parties together during the mediation, whereas a directive mediator may conduct the mediation with a series of private sessions.
Further, maybe an evaluative mediator might be helpful. Often an evaluative mediator will have the parties together for the first several minutes and then spends the rest of the time shuttling between the private sessions. The evaluative mediator may even present jury and judge verdicts from previous similar cases of the local jurisdiction to bring all parties to a realistic settlement.
Position v. Interest
Often, negotiators are not in the negotiation mood because they are stuck on positions. An effective negotiator can assist them in moving from their “positions” to discover the underlying “issues.” Once they uncover the underlying issues, often this can lead to creativity in terms of options.
Most people easily know their positions; that is, what they will or will not do. Positions are the “yes’s” or the “no’s.” Example: I will not pay over $5,000. I will not enter into a contract with that company.
Discovering interests is less familiar to some. So, parties need to find out what underlies these positions; in other words, the “why’s.” Example: Why will you not pay over $5,000? What are the reasons you do not want to sign a contract with that company?
Are Emotions Involved?
If the case involves family or neighborhood or friends, emotions are expected, although they are not always a factor.
But emotions also occur in many business cases. The emotions may involve the clients, especially in business partnership cases. Sometimes there are emotions between attorneys, possibly emanating from past cases.
If emotions are involved, such as “getting back,” retribution, etc., these need to be discovered or uncovered. Then they need to be dealt with efficiently. Maybe an apology is necessary. Maybe, a mea culpa.
Maybe emotions are the reason for the ambivalence.
Psychological Barriers to Negotiation
Speaking of emotions, authors Karl Albrecht and Steve Albrecht do an excellent job in their book, Added Value Negotiation-The Breakthrough Method for Building Balanced Deals, in describing psychological barriers to negotiation.
Among those are:
- Guilt about asserting self-interest. In the ideal negotiation, all parties have goals and the excellent negotiation settlement substantially meets all of these goals. But, a lot of parties have not been able to envision this. They are more accustomed to the adversarial approach.
- The fear of confrontation, conflict, or disharmony. Most people are uncomfortable with conflict and do their best to avoid this. Many aggressive negotiators know this and use this to their advantage.
- Being intimidated by domineering people. Some negotiators know that to be domineering, even insulting, can intimidate so this becomes their strategy.
Negotiation works best when all parties are in the negotiation “mood.” If one party is not, an effective negotiator uses patience, critical thinking, and creativity skills to persuade the hesitant party that it is worth their time to get this situation resolved. Maybe, eventually the hesitant party will realize the rewards or joys of agreement.
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Roy J. Lewicki is the author of 'Essentials of Negotiation', published 2015 under ISBN 9780077862466 and ISBN 0077862465. Publisher: McGraw Hill Higher Education
The Conflict Resolution Training Program, Leader’s Manual, ISBN: 0-7879-6077-2. Prudence Bowman Kestner and Larry Ray
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