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Why is it that one attorney can walk into a negotiation and in a matter of moments have his or her positions met while another equally competent attorney can negotiate the same points for hours and make no headway? The answer lies in the attorney’s negotiation skills and in how he or she puts those skills to work. Unfortunately, most attorneys spend little time concentrating on negotiating strategies. As a result, they either avoid the negotiation process whenever possible or they resort to simplistic “rules” of negotiation. Both of these alternatives leave the client in an awkward situation, as their needs are not being fully met. Despite the fact that effective negotiation is a key component of success, few attorneys have received formal training in this area. Instead, they learn by watching their peers negotiate and adapt what worked to their own style. Very often, the result is an adversarial type of negotiation strategy that produces poor results. The following are the 10 biggest mistakes attorneys make when they negotiate. Eliminate these errors from your next negotiation and you will not only set yourself apart from the crowd, but you will also likely reach a result that is reasonably acceptable to all parties. Emotional Distance. Finding emotional distance during negotiations is the key component of every successful negotiator. Emotion clouds judgment, which results in less effective outcomes. Problem solving requires objectivity, and when your emotions take over, your objectivity is lost. The most effective negotiators are aware of and in control of their emotions. They know their hot buttons and are aware when others are trying to push them. They know when they’re losing control; they step back and ask themselves what they need to do to regain their composure. Successful negotiators are able to detach from the emotion of the moment and make decisions based upon reason. Only then can a successful negotiation take place. Win-Lose Mentality. With a win-lose approach, one person is deemed the “winner” and the other is the “loser.” This mindset makes the negotiation resemble a challenge where one person must emerge as the victor. With this mentality, compromise is unattainable and the negotiations halt. Instead of thinking “win-lose,” think, “Win-win.” Leigh Steinberg defines “Win-win” as being “I ‘Win’ with a capital ‘W’ and you ‘win’ with a lowercase ‘w.’” It shows that everyone can win in a negotiation, although not everyone will win equally. When you adopt a “Win-win” mentality, compromise comes more easily and the negotiation meets the needs of all parties. Purposeful Anger? Too often attorneys jump into a negotiation with a chip on their shoulder. They mistakenly believe that flying into a rage is the best way to succeed at a negotiation. But think about this: How do you respond when someone yells at you or begins to escalate an argument? Do you let the other person “win,” or do you want to fight back? Instead of participating in the escalation, throw the other party a curve and remain silent. This may seem simple, but in practice it’s very difficult. The first step is to realize that not every statement from the other party requires a response. When your opponent sees that you won’t partake in that kind of “discussion,” he or she will often calm down and begin to act with reason. Failing To Prepare. Before you begin any negotiation, you must know what your ultimate goal is. Which points can you compromise on? Which points will you not budge on? Which points are in the best interest of your client? Whatever your objective, you need to fine tune it with the client before you enter the negotiation. Also important is to know your walk-away alternatives. How far are you willing to go before you walk away from the entire process? The more prepared you are for the negotiation and the more possible outcomes you have in mind, the better your chances of leaving with a positive solution. Other Party’s “Why”. In the heat of any negotiation, it’s easy to become so focused on your objectives that you neglect to understand where your opponent is coming from. When this happens, both sides become stuck and no resolution is in sight. If you are tired of tossing positions around like hand grenades and you want to discover the real interests behind positions, look your adversary in the eyes and say, “Why is that important to you?” This phrase does not mean you agree with the other side. It simply means that you want to know why the person is advocating the position in the first place. You are showing empathy, and you might discover a hidden agenda or a rational reason behind what you believe is an outrageous position. Positions vs. Interests. Interest-based negotiation focuses on the needs, desires, and fears of the party you are negotiating with. Positional negotiation looks only at positions. The problem with the latter approach is that positions are just the tip of the iceberg in a negotiation and usually lead to arguments as positions are bantered back and forth, never allowing the parties to get to the real issues: their interests. While interest-based negotiation is more difficult because it requires you to discover hidden agendas and to deal constructively with demands, it does attempt to solve the “real” issues facing the parties. Position-based negotiation, on the other hand, only escalates problems. Which approach would you rather use? Failing to Listen. When you listen to your opponent speak, are you hearing what he or she is saying or are you too busy formulating your response before you’ve had a chance to understand the other person’s argument? Many attorneys are so busy arguing their points that they neglect to truly hear what the other person is saying. When you listen effectively, your mind should be completely focused on the other person’s words, not on your rebuttal or on your position. Once you’ve had a chance to digest what the other person has said, you can respond and ask questions. The more information you have and understand about the topic, the better your negotiation will proceed. Lack of Reasonable Expectations. Providing clients with reasonable expectations of a case may be difficult, especially for an attorney who has just begun practicing and hasn’t yet established a reputation. Seasoned attorneys typically have more insight on how a particular case will turn out. The essential problem, however, is that some attorneys will tell the client anything they want to hear in order to sign up the client. When this happens, the attorney has undue pressure to negotiate certain points that may not be valid. It’s always best to enter a negotiation when the client is prepared for every possible outcome. No Ground Rules. Would you expect to win at a game if you played without knowing the rules? Of course not. Then how can you successfully negotiate if you don’t know the ground rules in advance? Since there’s less emotion at the beginning of every negotiation, lay the ground rules early before you start. For example, you may decide one rule is that no one will personally attack another during the discussions. Or you may institute a rule that no one is allowed to interrupt the person who is currently speaking. Whatever you decide, make your rules realistic and be certain to abide by any rules you suggest. Negotiating Too Quickly. Impatience is a characteristic of many attorneys. Sometimes we want to get to the bottom line and avoid the process of negotiation. As a result, we agree to positions without fully uncovering hidden motives or seeking alternatives. Doing this is not acting in the best interest of our clients. The fact is that negotiation is a process, and when we rush that process, we fail to come to the best solutions for all parties involved. In essence, we let not only our clients down, but we also let ourselves down. The next time you’re negotiating, even if there’s a deadline to meet, take the time to go through the process. Your outcome will be all the better for it. The most successful attorneys have mastered the art of negotiation. They are able to arrive at the best solutions for their clients, and in turn they gain their clients’ trust. Those attorneys who avoid the above mistakes and who stick to sound negotiation principles will find the negotiation process less stressful and more beneficial for all parties involved. Rob Sherman is an attorney, speaker, and author of “Sherman’s 21 Laws of Speaking: How to Inspire Others to Action.” He founded the Sherman Leadership Group, based in Columbus, Ohio, and works with attorneys and business executives on their speaking and negotiating skills.

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