Shut up and listen

The overwhelming TV live from Cairo with its confrontation and sometimes-frightening violence hides a more negotiation process going on.  That process has a lesson for us that some of the parties are ignoring and that may doom the anti-Mubarak side, or lead to an Islamist state in Egypt.

The lesson is simple.  Instead of trumpeting your own demands incessantly, stop talking and listed to what the other side is saying, and even proposing.  Mubarak said he wants to stay on until the September election, but in passing he made clear why.  He wants to die on Egyptian soil. 

While for many the past 15 or 20 years have been of awful deprivation, at least in his own mind he was after the assassination of Anwar Sadat a great savior, one who prevented chaos, somewhat as LBJ prevented chaos when JFK was killed in 1963.  But LBJ’s one elected term brought him great hatred from some, and he decided not to stand for re-election in 1968.  He retired then to Texas.  Surely that is where he wanted to live out his days.

The anti-Mubarak forces demand he leave the country.  No chance he is going to do that.  He would rather die in a presidential palace, stoned to death.  But Egypt is large.  There must be some nice seaside town to which he could be allowed to retire with dignity, go swim in the Med and write a memoir.  They should listen to this and begin a dialog starting with that as an outcome both side should bargain to while they bargain the transition details.

Still, they are mostly screaming too loudly to hear that.  Except the Islamist Muslim Brotherhood, which is organized enough to suggest a sit-down.  They are a minority, but sitting down to talk could give them an upper hand in the government that follows.  Listen.

But I don't want to Say what my interests are!

Like most modern negotiation trainers, I teach not to focus on positions but on interests. Awhile ago I gave a seminar, and one of the participants told me he doesn't want ever to disclose his interests, because then his negotiation partners will know what to withhold to put pressure on him.

Let's leave aside the notion that there has been no trust at all established, and that he may be contributing subtly to that distrust, maybe by non-verbal communication. What can he do? He has an important or even key interest, but is afraid of saying so.

Here's an idea to get around his problem. Instead of laying out for the other side what his interests are, my participant could just come to the first meeting with a list of issues or talking points—an agenda of things he thinks the eventual agreement ought to cover. He need not unduly emphasize the one that is key for him until and unless the other party is also forthcoming.

Negotiation 101: It is important to avoid positions, instead focusing on your interests, if you prefer by presenting a set of talking points or issues, not all key to your happiness.

Is It Hypocrisy?

If you look at my web page about Professional Negotiation, http://gotiation,gotiationpro.com/Negot.html, you see I advocate a style and philosophy of negotiating that seeks to expose and then if possible satisfy the needs of both sides. But the page loads with an animation that exhorts "Don't Leave Money on the Table." How can I believe in both?

Negotiation properly done is each side gradually, as it gains trust in the other, exposing what it feels it needs to get from the negotiation. As I emphasize often, this does not mean stating a "position" but listing needs. Often a position focuses on price, only one part of real world deals. And it contemplates a back and forth auction. I advocate instead persuading the other side and yours that the appropriate price is one based on fair and objective standards. A "position" has no place in this process.

If the final price is fair and objective, then neither side has left money on the table and both have as closely as possible had their needs met.

Negotiate in Your Zen Space

Practitioners of the Zen philosophy have something to teach those of us who are not, something that is helpful to the process of negotiation.

The most difficult part of negotiation for most people is keeping your cool in the face of the pressure to succeed, the pressure tactics used by others, resulting anger, and often the knowledge that a negotiation table is not a familiar place. Finding your Zen space can help enormously and, with reasonable practice, this can come naturally.

Practice in advance getting into Your Zen Space. You will be seeking awareness stripped of those obscuring layers imposed by mindless thoughts, self-referent attachments and dogmas. You will be seeking to view reality, as it is, a "mindful" state.

At first, use a quiet room, away from distractions, with neutral decorations. Get some non-disturbing music playing, whatever relaxes you. Sit in a comfortable chair. Close your eyes. Take three deep breaths, focusing your thoughts on your inhales and exhales. Review your thoughts and then discard them. Focus only on what it feels, sounds and looks like in this state. Imagine yourself watching yourself from outside.

This state is not sleep, but neither is it the hyper-alert, stirring state of mind when we are awake.

Practice this process often, in conditions that increasingly less isolated, so you can eventually get here wherever you are. You have found your Zen space, where you can think and interact without interference from your fears, biases and presuppositions.

You Can't Negotiate with Pirates, Can You?

"The only good pirate is a dead pirate." This is what some are saying, now that Capt. Philips of the Maersk Alabama is safe. I do not actually recall this sentiment when he was at risk, but now it is safer.

A pirate gang is like any other hostage takers. Whether they are to be negotiated with or just assaulted depends on circumstances. That applies to almost any potential negotiation. Whether it is worth talking with someone who owes you substantial money, or who claims you owe them depends on your assessment of (a) the potential benefit of talking, (b) the risk of not talking first, (c) the risk of proceeding directly to action, (d) the potential benefit of direct action.

The past couple years quite a few pirated ships have bought their freedom through substantial payments by their owners. Presumably, in each case there was at least some negotiation over price, payment method, and other details. No one was injured. In the case of the French yacht Le Ponant, two pirates and one hostage were killed. Some will say you should discount the dead pirates, only count the hostage dead, but that is debatable. Taking down hostage takers is potentially risky.

It is more risky if you announce a policy that you will not negotiate. Not talking at all makes their benefit for keeping live hostages zero. They have every reason to kill hostages before the hostages try to overpower them.

The potential benefit of talking is illustrated by the Alabama experience. One of the four hostage takers was talked into giving up after he was slightly injured. Three were easier to shoot with less risk to the hostage than four were.

What is there to discuss with hostage takers? Depending on circumstances, letting them get back in their fishing boat, disarmed but with a promise of no jail, at least no US/French/Russian/German jail, may be appealing to them. On the other hand, they may prefer a deal where they do time in one of those jails, but not in a Somali jail.

In other words, price of a buy-off is never the only thing to talk about.

Reducing piracy off Somalia may best be had by automating the means of sending notice to authorities and ensuring that helicopters or unmanned aerial vehicles (UAVs) will soon be overhead relaying back live high-def video. Still, one should not confuse negotiation in a specific piracy situation with best strategies for reducing piracy. The facts are grossly different.

Zen and Negotiation

I have not written for a while, having been busy both practicing law—mostly working with inventors to license their patents—and teaching seminars on negotiation.

Doing half a dozen seminars the past few months, I have been experimenting with titles and techniques. I have come to believe that attitude and affect are the most important things to bring to the table.

Books and teachers often teach tricks to use at the table, or clever parries. But this scripting carries a risk. What if you don’t recognize your cue when to use a trick or parry one? (Line, please.)

More important I think is to come to the table prepared mentally. At the least of course is being prepared with information about the folks on the other side, and with a good sense of what you need to bring away (not just a prepared “position” or demand and a fall back).

Scholars about the highest levels of negotiations—settling border disputes and avoiding war, and making high-value deals—know that is all about one’s own psychology, and maintaining self-control and self-awareness.

People familiar with the notion of Zen offer a way to do this, called “mindfulness.” At its essence, it means practicing the art of seeing yourself and your situation from outside yourself. It means seeing the whole picture, in its most objective way. It certainly means not demonizing the other people. And it means keeping your own balance when provoked.

Provocation is often not intentional, but simply the other side stating their needs, which do not match your own.

The best part is one does not need at all to become a Buddhist, does not need to adopt a religion, to become mindful. Nor for that matter to sit in a “lotus” position. One needs to study and practice.

Negotiation 101: Being aware objectively of the process and minute-to-minute changes of circumstance are key to negotiating successfully.

Splitting the Difference Can be Lose-Lose Negotiation

I want a million dollars for my building and you think it’s worth half that. Why don’t we just split the difference? One answer is that although it seems on the surface an efficient solution, it is really expedience, not reason.

To see that, let’s look at a famous dispute recorded in history where someone recommended splitting the difference. Two women came before King Solomon, sitting as judge, to settle a custody dispute involving a single living child. Each woman claimed that the other woman's baby had died, and that the surviving child was her own.

There was very little useful evidence. There were only two witnesses, the disputing parties, and each claimed to be biological mother of the child. They contradicted each other about their relationship with the surviving child. Each had a strong reason to lie and thus neither was credible.

Solomon was not stymied. After all, as king he was the law. He ordered the bailiff to bring a sword, to cut the surviving child in half, and to give each woman an equal share.

One of the women shrugged and quickly agreed to the plan. "Seems fair to me."

Still, the other woman wasn't pacified. She shrieked, "This isn't right! Please! Give her the child! Anything, but don't kill the baby!"

Solomon allowed the child to live. Pointing to the woman who complained about his proposal, he said, "This one is the mother," and awarded custody to her.

Who knows whether this really happened? Still, had Solomon not had the wisdom for which he is famous, it certainly would have been a case of splitting the difference.

Is splitting the difference for your current deal best, or would you be better off trying one of two other methods. The first is to think about whether the deal isn’t really more complex than just price. Are there other terms as or more important, such as payment scheduling or a million other things? If you are splitting a pie, is there any way to work together to make the pie bigger?

The other method is to see if the type of object in question or similar ones are sold often enough in the market to warrant looking at comparable sales. In real estate both parties would of course check that. However, in other areas the idea does not always occur. eBay® is a possible basis, but is tricky to use since only final bids are close to valid. Sometimes one can get hold of comparable salary data, while keeping in mind no two people are exactly fungible. Still, it’s worth looking for external market measures before jumping to a split. That is especially true since an exaggerated first offer by one of the parties distorts where the split is between them.

Negotiation 101: Don’t just split the difference. Think about an alternative method, such as negotiating other terms or looking for comparable things actually sold.

Everyone Knows About Them

Someone mentioned to me that I tend to use a lot of scenarios from international relations for starting points for my Negotiation 101 lessons. It's true.

I do that because they are situations most discerning people know about, even if they have no idea what they would do if they were personally involved. (Heck, I don't know what I would do, if I had a grasp on all the subtle details.) They are also high stakes, and generate some emotion.

The emotion, high stakes, and complexity are what I find make for lessons people will remember, and that is why I use them as takeoff points. They are negotiation situations of the highest water, and worth discussing.

Still, if you have a situation you'd like to use as a starting point - perhaps a situation you really have or expect you might get into - by all means please send it to me at NP(at)NegotiationPro.com and I will try to add a posting.

Thanks very much and Happy Holidays.

Phil Marcus, the Negotiation Pro

Speak reasonably and don't brandish a unilateral

In a recent article, an Israeli foreign policy expert named Gidi Grinstein speaks in favor of negotiation while carrying a big stick to the bargaining table. I do not agree and I will tell you why.

Grinstein’s context is admittedly very specific, namely the Mideast. His primary contentions are that both Israel and Palestine have two problems in common. One is for different internal reasons their governments are weak and instable. Both, although he only mentions Palestine, are subject also to pressures from their internal extremists not to bargain at all, not make peace, coupled with a will to violence. Somehow, he believes these are a reason to always come to the bargaining table brandishing a willingness to resort, if bargaining busts, to doing something unilateral.

That may not necessarily be violent, but not bargained for. As an example, he cites Israel giving up its decades old control over the West Bank. Without making clear why, he says this would be a blow to the Palestine government. I suppose it would deprive them of something to complain about bitterly.

Why not do something unilateral or carry the possibility with you to the table? Imagine yourself across the table from someone with a unilateral he or she displays, such as “I might do this. I might file suit while we are in these talks.” And your reaction? I’d bet something like, “Go ahead and file your effing suit, I’m ready.” Notice that your opponent is not saying “If these talks fail I will be forced to file suit.” That is understood, and your opposite will not see this as intended to break the talks.

Therefore, the key is not whether one has a unilateral available but whether it is brandished, or kept invisible and in quiet reserve. Quiet reserve is consistent with a sincere effort to have useful talks and to create trust. Brandishing … well, that’s obvious.

Negotiation 101: In negotiating any deal you almost always have something you can do unilaterally, like stop selling to or buying from the other side, but refrain from flaunting this unless you want to end serious bargaining.

Drop the "Devil" shit and you will understand your enemy

Like many of us, I have been focused a great deal on the horrific fighting in southern Lebanon and Northern Israel, and how these are part of a much larger drama that also features Iran, Syria, Russia and the US and others. Anyone can see that all this violence needs to stop and the differences—and they are real—be settled at the bargaining table. But how?

For most of us, we cannot even understand what is going on, largely because we see the whole travail through the eyes of a side we feel has been dealt injustice by the other. Actually, it is not so hard to see what is going on and what is going to go on soon in international affairs.

Still, the first step is a very important and difficult one.

Back in the days of the cold war, each side's military and most of their political backers — US and USSR — saw the other as devils. In many case the metaphor was taken quite literally. The "Communists" were "Godless Communists." The demonization was complete.

You cannot understand your enemy's thinking unless you cease thinking of him as the devil. Yes, he remains the enemy, but while he is conspiring with his friends, he does so because he believes YOU are the devil, and are conspiring with YOUR friends to crush him. And you are, because while you are not the devil you believe he is and is plotting to crush you. Which he is. Not because he is the devil, but because he believes you are planning to crush him. Which you are. Because ...

Your enemy's generals are for the most part not diabolical but are charged with protecting their homeland, just as yours are, and they take that seriously, as they are trained and sworn to.

Negotiation 101: Drop the "devil" shit, and you will be able to understand your enemy and negotiate with him to de-escalate violence, and stop or prevent war.

Negotiating through Media

In a totally connected world governments and others frequently negotiate by public statements they expect to get into newspapers and on TV, and from there to their opposite entities. For example, In January the Israeli government made a public statement through its acting prime minister that it would not talk further toward peace with the Palestinian Authority, now lead by HAMAS, until HAMAS renounces violence.

On its face that looks like a cutoff of talks, but it is not. It is just negotiating publicly. HAMAS is not likely to comply literally, but if it wants to move toward peace, it will make a counter-offer. Perhaps it will agree not to use violence so long as the Israeli government is willing to talk about HAMAS’s ‘just grievances.’ (The latter is my hypothetical, not a HAMAS statement.)

Labor and management, Republicans and Democrats, and other pairings frequently use this channel to negotiate. Why? Two reasons. First, they want to de-escalate but their clients or supporters are in such high dudgeon the representatives cannot be seen in the same room as their counterparts, or they will be seen as selling out their principles. So the idea is to have some talks via the media, spiral down the confrontation, and get to a point where their clientele will accept their talking directly. “We will not talk until they renounce violence” is more peaceful than “We will not talk.”

Alternatively, the point is to intimidate the other side. Then it usually comes with an “or else,” such as “or else Tuesday we will renounce the current contract and start firing union employees.” Either way, however, there are risks.

The big risk is bollixed messages. The media may well change the exact words or thoughts. Mostly that happens by truncation—passing part of the message. Whether by garbling or truncating, if the other side hears it wrong, and it was intended to keep a door open, they may actually raise their rhetoric and make things worse. So the message has to be wordsmithed to be as simple as possible.

The other risk is that the media don’t find the message interesting or controversial—newsworthy—enough and just don’t carry it. What do you do then?

If the message via media was to intimidate, and it does not go through, then the strategy of intimidation may fail. One might then have to deliver a direct message such as a letter, and that usually does not have the ‘ballsy’ quality of a threat via media.

Negotiation 101: You can negotiate via the press or TV/radio/Web, but make sure your message is simple, unambiguous and newsworthy, whether you are trying to de-escalate or intimidate.

Mickey Mouse Makes Deal for Playmates

Mickey Mouse has bought some electronic playmates for $7.5 billion, as Disney buys Pixar. Three months earlier it would not have been possible. Why could a deal be made now?

In January 2004 Pixar broke off talks with Disney to extend their distribution deal past spring ‘06: Pixar made ‘em and Disney marketed ‘em. Why, since they had a very mutually profitable deal? Apparently Disney’s Mike Eisner grated on Pixar’s Steve Jobs. Pixar was and is of Emeryville, CA near San Francisco, while Disney is of Burbank near L.A. The principal’s personalities fit their locations.

Eisner may have grated on the Disney Board because they kicked him out and put in one Robert A. Iger as CEO in the fall of ‘05. Evidently Iger and Jobs jelled, and the deal came out of the dish. Little else changed beside who was dealing with whom.

Negotiation 101: Often whether a deal happens at all or not will depend very much on the personalities of the people dealing, while the terms of the deal will depend on things favored by accountants.

Is It Ever Wrong To Negotiate?

A couple comes home from a party to find their million-dollar Dali painting gone from the wall. A day or so later their insurance company says it has gotten a message through “channels” that the Dali can be bought back at a reasonable price. Does the couple say they “never negotiate with burglars?” I doubt they would say that and never see Dali again.

Change the story: now it is their 5 year old, taken away from the custody of the babysitter while they were at a party. Do they “never deal with abductors?” I can't imagine parents saying that.

What if the abduction is instead an ‘abduction in place’ at, say, a bank being robbed? Is it appropriate for the police to say they “never deal with hostage takers?” Do the stakes belong to the police, so they may make that decision? Is it good policy? After all, it's an abduction, like the 5 year old.

What if there is an abduction in, say, Baghdad, of a journalist, or a worker for an NGO or a non-Iraqi civilian contractor. Should the abductee’s foreign ministry or state department say it “never deals with terrorists?” Is that always a good policy? Are they “terrorists” only because they do not have their own land? If they did, would they then be “the enemy?” Does one ever negotiate with the enemy?

I am not asking political but rather moral and practical questions. What do you think are the best answers? Negotiation 101: Think long and hard before refusing to negotiate a solution.