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.

The Three Little Pigs Teach Negotiation

Let's reinterpret the familiar tale of the Three Little Pigs and their nemesis wolf in real adult terms, and apply it to negotiation.

We often tell the tale to children to help them deal with their various fears, some expressed as fear of being eaten. Adults, too, have fears, often similar. They fear being "eaten alive" by a clever and aggressive business adversary. Still, to counter the fear we need only one pig, one who is intelligent, a planner, and not panicked. And our hero pig can then build a metaphoric house of bricks to thwart the business wolf.

This is essentially what I speak of when I advocate using Zen technique, or getting to Your Zen Space^sm to counter the fear of being eaten alive or otherwise beaten at bargaining. Remember to concentrate on three consecutive breaths, the inhale and exhale; imagine yourself personally outside the situation and observing it; and practice this procedure often, at non-threatening times.

You will now be able to thwart the wolf at the door, and no amount of his or her huffing and puffing will threaten you. You will feel safe and able to think rationally and ahead.

How do you write a provisional patent application?

That is not especially relevant to one seeking to learn negotiation, but I have a second interest, which is patents and other intellectual property. Being this is my web log, I am going to indulge it.

A provisional patent application is used to suspend time. It costs thousands to file a real ("utility) patent application, so to pin down when you made the invention you file a provisional. This gives you a "priority date" good all over the world, so long as you follow up with a utility within a year. And you can write the provisional yourself, if you follow the requirements. Sometimes the best way to describe what is required of someone is by example. Therefore, for anyone planning to write a provisional, herewith an example of what you need to write.

Example

Background: In all prior art baseball bats have been made by sawing off tree trunks so the cross section is square. A handle has been sawn near the proximal end of the bat, where the batsman can hold onto it. This has also been square in cross section, although smaller than the distal end that strikes the ball. This type of bat often strikes the ball on one of the sharp corners, resulting in an unpredictable direction of flight.

Summary of the invention. I have invented a baseball bat round in cross section and with the handle arising in a gentle contour diminishing from the "head" or distal end of the bat. This results in a far more predictable and thus controllable direction of flight.

Brief description of the drawings. Fig. 1 and Fig 2 show a baseball bat according to the prior art, respectively in plan and cross section views while Figs. 3 and 4 shows a baseball bat according to the present invention, again respectively in plan and cross section views .

Detailed Description of the Preferred Embodiments. As shown in Fig. 3, the bat 1 gradually tapers from the head or distal end 2 to the proximal or handle end 3, and then more sharply to the knob 4. These tapers are achieved in the preferred embodiment by placing a piece of ash or hickory wood of sufficient initial diameter in a wood lathe and turning it down with appropriate cutting tools. As shown in Fig. 4, the cross section is maintained by the lathe as a perfect circle everywhere along the length of the bat 4. The diameter is maximal at the head end 2, minimal along the handle 3 and larger than the handle at the knob 4 at the proximal end of the bat.

As will be clear to any person familiar with the art of forming baseball bats, there are many other possible embodiments, based on using different types of wood or other materials and by using different tapers from those shown in Fig. 3, as may be convenient for manufacture and for those wielding the bats.

[drawings omitted; you can imagine them]

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.

Negotiate After that Insult? A Sign of Weakness.

Your opposite number insults you at the bargaining table, with words or an insulting offer, or otherwise provokes you. Isn't it a sign of weakness for you to keep bargaining?

Actually, the insult or provocation is a sign of that person's feelings of weakness. They are trying to maneuver you to cut off bargaining, so they can feel good that they did not cut it off.

If you can maintain your poise, you will be in a good position to pursue the bargaining and get a good result. Try it next time and you will enjoy the result. Just don't rise to the bait.

Instead, you can comment something like "I heard someone say that kind of thing on TV a week or two ago—not the kind of thing that disturbs me." Do not accuse or attack in return.

Then go on to describe what your needs are in the negotiation, and asking what theirs is, so perhaps a common ground can be found. A confident negotiator uses that style.

By the way, apology when you were insulting or otherwise not civil is not a sign of weakness. It is a sign of confidence in yourself.

Negotiation 101: Having been insulted or provoked, keep your cool and go on bargaining.

An Idea + Lotsa Work = Money

"Hey, I've got this great idea for an invention. It'll make a ton of money. All I need to do is patent it."

No, it will not, not by itself. But, assuming you have a real, patentable invention—what that is, is worth a separate posting—then you have a good start. But you have a lot of work to do.

The first step is to build a prototype. It need not be neat looking, because you are not going to sell it. But you do need to make sure the invention works as your base idea predicted. Nature is a notorious trickster, and the best-trained, experienced engineer or scientist cannot predict exactly.

Now, step two, get some capital together—your own, and from friends and family. You need it for the next three steps. Step three: do "upstream" marketing. That does not mean try to sell the product. You don't even have a product. Make contact with people and companies who might have an interest later, when there is a perfected product. Engage writing pad, not mouth. (Get each contact to sign a non-disclosure agreement.) This is where you find out the reality about the potential product, and maybe some things that will help sell it. ("No way we would buy that in grey, but if you make it beige, hey, call us when you are ready to sell!") Spend more for this upstream than the next step, R&D, and you will make money.

Here is a recipe for failure: "I don't need that upstream stuff—this invention is dynamite and I know it will sell like hotcakes."

Ok, step four: if the upstream tells you that you do have a winner, start perfecting the invention into a product, what is formally called "R&D." At the same time, start talking with a patent attorney, because step five is start up the patent process.

Step six is to assemble a management team, including you, but also an experienced business manager, a marketing/advertising person, and a finance person. You will need all these to manufacture and market your product. And to raise the money to start your manufacture-and-market company.

On the other hand, if your plan is instead to license your invention, you still need some R&D, enough to make a polished prototype to show around.

These steps all take time and effort. The great inventors you have heard of—who invented the light bulb, movies, the "talking machine," TV, the cell phone, antibiotics, Google®—you name it, all put in the time and effort, and made a ton of money.

OctoMom seeks Trademark Registration?

I suppose you caught the article http://www.cnn.com/2009/US/04/15/octuplet.mom/index.html, or one like it, saying the mother of 8 now seeks to register that name as a trademark, for diapers and TV shows.

She might get a registration. I cannot find any legal reason why not. That would not prevent continued use by news organizations of "OctoMom" as fair use. And she would be a fool to interfere with free publicity.

Monumental bad taste aside, this is a pretty clever move, if she can get her diapers onto the market. Considering the public's bad taste, some manufacturer will surely license her trademark and start selling Octomom diapers.

Only in America.

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.

Treat the other side as fellow humans with different views

Like everyone, I see the recent deal with the North Koreans as a real opportunity to increase world stability and reduce the chance of nuclear war. As an attorney and negotiation trainer, I see a learning opportunity for everyone who makes deals.

The 5+ decades since the nominal end of the Korean War have featured each side feeling threatened by the other, steps taken to repulse the other, and lots of nasty name-calling. The President’s labeling North Korea part of an “Axis of Evil” was an example of demonizing the folks across the bargaining table. It cuts off discussion.

People say the Bush Administration has the past couple years begun to seek a deal with North Korea as trying to recover at least a bit of positive foreign relation
legacy. Perhaps, but that only explains why they did a deal.

The more important lessons have to do with how. We stopped referring to North
Korea as “Axis of Evil” or with other debasement. That was good. No one will bargain with someone who calls him a criminal.

We went to the table without “pre-conditions” or points the other side must concede at the beginning. Only a fool would make such concessions before coming to the table. We apparently listened in good faith to their concerns about invasion from the South, even though we consider those concerns paranoid. When you
listen to the other folks in good faith, they will listen to you, even though neither side can believe the other side believes what they claim to.

“We are all more human than otherwise,” someone said. If we keep that in mind about those we despise but must settle disputes with, we increase the chance that bargaining, however lengthy, will pay off.
Negotiation 101: Bargain with the other side as if you thought they are OK-- potential dinner partners-- with no pre-conditions, and you may actually make a deal even if you hate them.

Negotiation is not Appeasement

The past couple days there has been a discussion between American political figures about appeasement.

One side says it is appeasement to be willing to negotiate with one’s enemies. Candidate Obama—who may have been the target of the remarks by President Bush and Candidate McCain—says it is not appeasement to be willing to talk, as a means of averting violence when there are strong issues between the two sides.

This web log is not about picking politicians. It is about negotiation. Negotiation is not appeasement, it is good sense. Being willing to negotiate—in a context of some agreed ground rules—is the beginning of solving problems by resolving issues.

You need a reasonable set of ground rules, whether the issues are as large as those in the Middle East, or as small as whether Johnnie or Susie gets to play with the fire truck for the next half hour. Those ought to include agreement to be civil, not to call names or make accusations. Instead, the focus ought to be, first, on clear statements by each side on what they need to get out of the negotiation. Not “You stop hitting me.” /”You stop cursing me first.”

Instead, “I need to be able to live without being hit.” The debate is not then to be about which side is stronger and can win a battle, but whether both sides would be happy without violence, and what the details of such a peace would be.

Both sides should be creative about what they might concede to get peace, provided those concessions are part of a package, a complete deal.

The deal struck ought to be one which outsiders would consider reasonable, fair and just.

Although the root of the word “appease” is in the word “peace”, we today usually take the word to mean to buy off at the expense of principle.

However, not every principle is one most people would consider fair, reasonable and just. For example, drawing from the Middle East, some Americans would consider it their principle that every nation should be democratic in government. But not everyone would agree that it is just to apply that principle to a nation not your own.

Some Muslims believe as a principle that a government must follow strictly the rules and governmental structures laid down in the Quran. They do not accept a democratic government, nor practice by non-Muslims of rules of life not in the Quran, e.g., their own faith’s rules of life.

It is clear both cannot exactly follow their principles and come to an agreed resolution, because both sides wish to apply their own principles outside their own dominion. Both sides will need to give to get.

I am not suggesting what that might look like. Wiser heads than mine have been working on this for many decades.

I do suggest that there are rules both sides could agree on during the process of coming to terms, such as mutual respect, civility, working together creatively to make a resolution, and listening sincerely to the views of third parties on what is fair, reasonable and just.

One can, then, be firm (“I will talk, but I reserve the right to say ‘no.’”), and insist on those rules of process as a precondition to speaking, while expressing a willing to negotiation. That is not appeasement.

Negotiation 101: One can negotiate, under pre-established rules of process, aiming at a mutually agreed bargain, without it being appeasement.

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.

Producers and Networks Worked From Faulty Script

The Fall 2007 strike by the Writers Guild against producers and the TV networks illustrates exactly the wrong way to bargain if you want a deal. I am not privy to the bargaining tables, so I can’t assign blame for certain. But I know the management side expressed some faulty reasoning in their public statements.

Experts say there are four basic principles for successful negotiation at all levels. One is to leave all the personal stuff at the door. Instead, this seems to be a contest to show who has a bigger something. Score: 0-0. Second basic: both sides should be focused on inventing possible solutions rather than repeating their opening positions as mantras. I don’t know how detailed the Guild ideas were about dealing with electronic media—which are the crux of the dispute. But Management initially refused to even mention these media in any deal. Score: Writers 1 – Management 0.

Another principle is to express clearly and candidly to the other side what you see your interests and needs for the final outcome to be. Because I am not privy to the bargaining I cannot score this. The Writers were pretty candid publicly, not as far as I know the Management side.

Let me expand on this a moment. The root purpose of any contract is to allocate risk. More precisely, it is to lay out a bunch of what-ifs (conditional events) and say what each side must do or receive in each case. Example: ‘If Harry Homebuyer comes up with the finance to buy 123 Main St. by such and such date then Oscar Owner must deliver to him good title and vacate promptly, else Oscar keeps Harry’s deposit.’ It is almost like programming, in a computer sense, a relationship between people or entities. The focus is on conditionalal or uncertain events. Sometimes the ‘program’ is a ‘regardless.’ For example, ‘Regardless whether corn prices go up or down between now and ninety days from now, A must deliver to B on that date 1000 bushels at a dollar a bushel.’ (B risks the price might go down, and A that it might go up.)

Everyone agrees it is uncertain even months later what will end up the success or shape of the economics of electronic media. This is exactly when you start building what-ifs, dividing the risks so each side has some risks and some possibilities of reward. The Writers seemed ready to do this, but Management initially said they would not bargain in this area at all as long as there is uncertainty.

This seemed more a cheap excuse or cover for using cash in bank to wait out the writers and break their Guild than anything else. The producers were stalking horses for huge corporations. Those three really big dogs could live off their various enterprises and cash probably much longer than can the writers off their personal savings.

What the big dogs do not have is public support, both in terms of American support for underdogs, and American demand for new comedy and drama. The underdog support touches another basic principle of negotiation, that almost everyone likes to be seen as a fair-dealer, although self-evaluation in this area varies.

So what we saw mostly was not negotiation but a kind of cold war. It is likely to continue. Will there be winners? The Canadians have developed a facility for producing TV and artsy movies. The big dogs cranked movies into cans in anticipation, and were slowly letting them out of cans. They could eventually start buying TV ‘product’ from Canada. Non-US movie studios might increasingly make product for movie theatres, although probably not the large-scale movies only Hollywood can mount. One could also expect sports to become bigger on TV, and for 2008 presidential politics, another sport, a really big one as it turned out. Senator George J. Mitchell, who settled the conflict in Northern Ireland, famously said “Conflicts are created and sustained by human beings. They can be ended by human beings."

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.

Negotiate ‘Off The Line’

In late Feb. ’07 the Edmonton Oilers ice hockey team dealt away one of their top players, Ryan Smyth, to the NY Islanders. Many were surprised, because Smyth is a native Canadian, (he grew up near Edmonton in Banff) and Canadian teams don’t often trade away Canadian players—it ticks off the locals. Why they did may have been a miscalculation by Smyth’s agent, Don Meehan.

Apparently, and I have no inside information (I read http://chuqui.typepad.com/two_for_elbowing/), Meehan and team G.M. Kevin Lowe were talking right up to the trade deadline, and were about $300K apart out of $5 million a year on a five-year deal. (Imagine the airborne testosterone.) Who is going to blink first? Meehan supposedly did not think Lowe would do a trade, but would blink first and kick in the extra 6%. Instead, Lowe picked up a phone and traded Smyth away.

Doing that, he ticked off fans but also scared every player negotiating with him for several years, until the memory fades. He probably pays a lot less for the player he gets for Smyth, giving him money to buy other players and maybe wins more games each year over the long haul. Also, he wounds Meehan’s reputation, perhaps helping himself even more, since Meehan has several players in his stable. There’s another hooker: not having signed a 5-year contract as they were discussing, Smyth apparently becomes a free agent in a few months, and Lowe can try to get him back, but maybe at his price.

I am not going to second guess what should have happened in the emotional last 30 minutes. I am instead going to talk about how difficult it is to bargain when you insist on inching along the line that separates the two parties on price, each making small concessions.

Bargaining experts suggest you get “off the line.” Here’s what I mean—and from here I allow myself a bit of fiction, since I don’t know the facts about this hockey player. Maybe the length of the contract could also have been put in play. Depending on his age and injury history, Smyth might want a contract longer than five years, to protect himself. Lowe (management) might really have wanted a shorter contract, if Smyth’s future beyond three years or so is uncertain.

Meehan, the agent, might have offered to do a four-year deal, but with a guaranteed fifth year if Smyth scores so many goals the fourth year, in exchange for the $300K per year. Presumably, he knew his client’s needs exactly at this time, and had “chess-boarded” what might happen at the last moment. What if Lowe, the G.M., sees a long future for Mr. Smyth and refuses that? Then Meehan can suggest—or Lowe might—a longer deal than five years, with a few more bucks per year.

Or there could be bonuses each year for goals scored, or opponent goals blocked (or major opposing players sent home on medical leave—maybe not).

The point is that it is no longer a pure blinking contest. When there are continuing relations between the negotiators, no one really wins a blinking contest. It makes everything a personal contest, with the players as pawns. Better to get into shared problem solving. (Better, also, not to bargain in the last 30 minutes, but humans tend to procrastinate, including me.)

Bargaining ‘off the line’ is an example of what negotiation pros call moving from the personal to problem solving—treating the situation as a problem both sides want solved, and working together despite different interests to satisfy the both interests as well as possible. It’s a lot less stressful than horse-trading and gets better results.

A Successful Negotiation and its Lessons

Global Software, a large developer/marketer of specialized software, bought out the stock and thereby the main product of SuperTech Software. That main product was not fully developed, but promised great returns for Global, because the timing was right to take advantage of new government regs requiring such software. Global budgeted an extra ten per cent beyond the buy-out price to purchase training for its software people to learn enough about the product to finish developing it to something marketable.

Then they approached Cindy, the project manager and a principal developer at the former SuperTech, seeking the training they needed. They offered the budgeted 10%, but had a list of training tasks, although with missing parts. Cindy was confident that, personally and with colleagues she would organize, she could deliver the training. But not for the ten percent. What could she do?

Cindy’s business coach spent an hour or two with her persuading Cindy she could conduct an effective negotiation. She also got a few pointers from a professional negotiator. Then she approached Global’s project manager, Charles. She set a date to visit with him, and prepared a spreadsheet showing all the tasks that would be needed, reasonable prices for each task, and the total, which was about three times the budgeted 10%.

On the appointed day, and in several later phone calls, Cindy went over the details of the spreadsheet with Charles, explaining the amount of time required for each task, why the prices were in line with industry standards. She also explained how Global would waste its large investment if it went cheap on the tech transfer training, perhaps never completing the project, or completing it after the window of sales opportunity closed. He countered by explaining how they had set up a fixed budget and could not change it.

Finally, with persistence she convinced Charles, Global’s project manager. He in turn went to his boss and his boss’s boss to seek additional investment in training, using the materials Cindy provided. After hemming and hawing, the higher managers agreed, and Global issued a contract to Cindy, one that would assure her and her colleagues months of remunerative and interesting work.

This story—the names have been changed—illustrates several points about successful negotiating. The first is how important preparation is. The detailed spreadsheet greatly helped Cindy make her points. Doing it in advance enabled her to take the time to do it right.

The second is the use of outside, objective data. Here, that data were the prices for the various tasks, compared to typical pricing for similar training tasks.

Point three is that Cindy separated out any personal emotions she had initially about Global apparently trying to cheat her by offering a lowball contract, and using Charles as a battering ram.

The fourth point is Cindy stuck to her guns without being personally obnoxious or angry, but instead remaining informative. Eventually this negotiation worked out successfully.

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

That SOB Has To Give Up His Ace Before I’ll Talk With Him.

The recent Iraq Study Group report and the various reactions to it shine a light on a frequent problem in all kinds of negotiation and dispute resolution.

The Study Group recommended that the US and Israel, with slightly different interests, both begin talks with Iran and Syria. The idea for the US is to find a way to extricate itself from Iraq. From what I can tell, Pres. Bush refuses to speak with Iran until and unless Iran in advance gives up its apparent vision of having nuclear weapons.

I am not going to tell the world’s leaders how to solve the Iraq and Israel/Palestine problems. I don’t have all the facts. Still, as I have said, this position shines light on a stance people sometimes take in negotiating. Simply stated, “I will not sit down with that SOB unless he first [gives up his strongest negotiating card, his ace].” Well, you know he is not going to, and things will remain at impasse, likely with continual provocation back and forth.

What’s going on? Some folks think that a negotiating position that strong will pressure the other person to give up his ace and back down. Not likely.

For some folks it isn’t a tactic. They really are that stubborn, and don’t care whether the other person gives up his ace, as long as they don’t have to change their stated position that demands that the other person does give up his ace. That is, it is pure stubbornness, a/k/a “principal.” Things will remain at an impasse with escalating hostility a long time. Just the same as if it were just a negotiating tactic.

How does that impasse get broken down and a deal get done? Maybe it can’t be. Maybe both sides have to be so bloodied they can no longer stand, and the people who eventually take over for them are more reasonable.

There is another way. The person with the unmeetable demand can permit someone to negotiate for him (or her) without apparent authority. This ‘back channel’ can open a door. True, at the start there will be little if any trust on either side. So, why negotiate with someone you don’t trust?

The short answer is if you don’t you will never resolve the issues, and may spend years in hostile disagreement, with each side taking various types of hits. Or break a deal that might be good for both sides.

The longer answer is trust can be built up with a series of small concessions, sometimes as little as the shape of the bargaining table. (Don’t laugh. The negotiations that ended the Viet Nam War took several years and in the beginning focused on that subject.)

The gradual process can help each side understand the other and learn what makes the other tick, partly based on carrying through with promises and on operating in apparent good faith. Note that good faith is not the same as caving in. It means honesty and a degree of candor.

Why negotiate with your enemy? Because, again, if you don’t you will remain at war. That may be as small as continuing exchanges of neighborhood nastiness like throwing garbage over the fence at 2 a.m. or making unnecessary noise. Of course, it can be as large as confrontations of thousands or millions of heavily armed troops. Or something in between. It always means no-one wins. In other words, the alternative to talking with your enemy stinks.

Negotiation 101: Consider sitting down to talk with your sworn enemy or someone you don’t trust a danged bit, because if you don’t the alternative stinks.

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.