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Chapter 1
Negotiation
What Negotiation Isn't

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People who fight fire with fire usually end up with ashes.

– Abigail Van Buren

Think of the word “negotiation.” Quick, what images come to mind? Conflict? Confrontation? Battle? War? Or maybe: Debate? Logic? Science?

These are common interpretations that have fueled the negative approach to negotiation and are dead wrong.

Contrary to the fictionalized, Hollywood-ized, and ripped-from-the-headlines versions of larger-than-life moguls and the big-bucks business world that, up to a point, never seem to lose, from the investment bankers in Barbarians at the Gate, to Gordon Gekko in Wall Street, to Lehman Brothers in Too Big to Fail, to Jordan Belfort in The Wolf of Wall Street– dealmaking shouldn't be a stare-down in a stud poker game, a shoot-out at the O.K. Corral, hand-to-hand combat, a high-tech military maneuver, or an all-out atomic war. Despite the macho, swaggering, in-your-face lingo – winner take all, out for blood, call their bluff, raise the stakes, battle-scarred, make 'em beg for mercy, first one to blink, an offer they can't refuse, nuke 'em, meltdown, go for the kill, last man standing – negotiation isn't about getting the other side to wave a flag and surrender. Negotiation is not war.

Despite all the clinical, logical, rational, psychological, data-sifting analysis, graphs, pie charts, methods, and techniques from MBAs, CPAs, CEOs, shrinks, mediators, mediums, gurus, and astrologers, negotiation is not a science.

The problem is that war stories tell well. Wars have heroes and enemies and simplistic lessons: Take no prisoners. To the victor belong the spoils. (But war, you may have noticed, can lead to more war.) And science sounds like a formula. If you do A, he'll do B, and you'll arrive at C. Maybe. Unless he does D and then what do you do?

Negotiation as war and negotiation as science have each contributed to the popularity of the negative image of dealmaking, one by perpetuating the myth that the biggest, toughest thug wins and the other by way of the equally erroneous proposition that the coldest, least human calculator prevails.

Cultural conditioning (magazines, TV, movies, best-selling books, infomercials) has reduced dealmaking to images of brutal combat – often making great entertainment on film but lousy negotiation in reality. Gordon Gekko, the classic tough-guy negotiator from the movie Wall Street, played business hardball and never seemed to lose. (This is the movies, not life.) You may recall one scene where Gekko showed an adversary how the game is played (or Hollywood's version, anyway). In the scene, the well-dressed and self-impressed Sir Larry Wildman tries to bully Gekko into selling his shares of stock cheap so Wildman can pull off a takeover deal. Gekko, of course, is too shrewd to succumb to Wildman's intimidation. Gekko's protègè, Bud Fox, watches and learns. It went something like this:

Wall Street*:

INT. GEKKO DEN – NIGHT

Wildman

I'm announcing a tender offer at 65 tomorrow. I'm expecting your commitment.

Gekko

Showdowns bore me, Larry. Nobody wins. You can have the company. In fact, it's gonna be fun watching you and your giant ego try to make a horserace of it… (turns to Bud) Buddy, what's a fair price for that stock?

Bud

The breakup value is higher. It's worth 80.

Gekko

Well, we don't want to be greedy, so what do you say to 72?

Wildman

You're a two-bit pirate and green-mailer, nothing more, Gekko. Not only would you sell your mother to make a deal, you'd send her COD.

Gekko

My mail is the same color as yours is, pal. Or at least it was until the Queen started calling you “Sir.” Now, you'll excuse me, all right, before I just lose my temper.

Wildman

…71.

Gekko

Well now, considering you brought my mother into it, 71.50.

Wildman

Done. You'll hear from my lawyers tomorrow. Eight a.m. Good night.

Gekko

Well, he's right. I had to sell. The key to the game is your capital reserves. You don't have enough, you can't piss in the tall weeds with the big dogs.

Bud

“All warfare is based on deception…” Sun Tzu. “If your enemy is superior, evade him. If angry, irritate him. If equally matched, fight. And if not, split… reevaluate.”

Gekko

Hey, hey, hey, he's learnin', huh? Buddy's learnin'.

* Excerpt from Wall Street ©1987 Courtesy of Twentieth Century Fox. Written by Stanley Weisner & Oliver Stone. All rights reserved.

The Hollywood version of dealmaking makes good entertainment; it just doesn't make for good deals. The person on the other side of the table doesn't have to stick to the script.

Now, think of the word “negotiation” again. In order to practice the Power of Nice, start by wiping out everything you knew, thought, or felt about negotiation. Forget about winners and losers. Forget about verdicts. Forget about survivors and victims. Forget about keeping score. Forget about statistics. Forget about science. Forget about war.

Going into negotiation and counting on scientific results is like betting on the weather. If the forecast calls for a 20 percent chance of rain and you leave your umbrella home and it rains, you won't get 20 percent wet; you'll get soaked.

If you go into negotiation expecting war, bring a flak jacket. If you're armed for combat, the other side will be, too. If you have to win at all costs, so do they. Both sides attack, both sustain casualties. Neither side gives in, neither side gets what they want.

Negotiating a Phone Call

Imagine your car has broken down. You need to make a phone call for help and you have no cell phone. In the distance, you see a phone booth. You run to the booth but see there's a gentleman talking on the phone. How do you negotiate the man out of the booth? Do you wait patiently? Do you tap on the glass? How long is long enough to wait? Do you reach in and drag the man out?

Okay, change the facts. You had a car accident and your friend is near death in the passenger seat. You have to call 911. Now how do you negotiate? Do you wait patiently? Bang on the door? Throw the man out?

Change the facts again. You still have to call 911, but the man in the booth is Hannibal the Cannibal Lecter from Silence of the Lambs. Do you ask politely? Do you try to throw him out? Do you invite him to have dinner with your friend? Do you run for your life? As situations change, negotiation strategies must change. Negotiation isn't a science – there's no laboratory-proven answer. And negotiation isn't war – you don't attack Hannibal the Cannibal. Negotiation is a human interaction; it must be adapted and modified to fit the situation.

I Win–You Lose Becomes We Lose

Remember, if one party destroys the other, there's no one left to carry out the agreement. (Exacting exorbitant rents, punitive penalty clauses, or unrealistic noncompete terms often defeat their own purposes by creating disincentives; in other words, deals that are so good, they're bad.) The negotiation doesn't end when the contract is signed. If the other side is crippled by the deal, they will have every incentive to break the terms, literally having nothing to lose. You just made your first and last deal, instead of the first of many in a long-lasting relationship.

Nothing proves the point like history.

The Last Day of World War I was the First Day of World War II

It was 1919 and the Allies had defeated Germany. The story goes that the Allied representatives sat the vanquished German leaders down in a railroad car outside of Compiegne, France, to dictate the settlement that would eventually become the Treaty of Versailles. “Dictate” was the appropriate word. President Wilson had warned the Germans that the terms of armistice would be harsh – and they were.

German troops had to withdraw to a line six miles east of the Rhine River. Allied troops would occupy the evacuated territory. The German naval fleet was surrendered. Virtually all military supplies were given up to the Allies, including 5,000 cannon, 25,000 machine guns, 5,000 locomotives, and 150,000 railroad cars.

But the toughest demands were political and economic. Germany was ordered to pay huge reparations to the Allies in the form of cash and the removal of German assets and capital goods. France, which had been devastated by the German forces, regained Alsace-Lorraine and took over several German colonies. France was also given a 15-year lease on the Saar coal mines which, along with Lorraine, provided coal, iron, and potash to the development of heavy industry.

With a crippled postwar economy, it was soon clear that Germany could not sustain the burden of the payments. In 1923, the Dawes Plan was conceived to create a payment plan that Germany could meet. As a result of German reparation defaults, Belgium and France occupied the Ruhr district. By 1928, with Germany further behind, the Young Plan was a second effort to collect payments. Again, Germany was unable to pay. President Hoover called for a moratorium on reparations (and the United States forgave all debts from other Allied countries that were going to be repaid with monies they were to have received from Germany).

The Allies had won, Germany had lost. It was a classic I Win–You Lose negotiation. The Allies got to set all the terms. But the terms were unrealistic. They made a deal that could not be carried out. Instead of creating peace, they created further resentment. The loss of the Ruhr, the devastation of the German economy, the sacrifice of natural resources, all contributed to a latent, seething desire for revenge. Many historians feel that it was the ideal atmosphere for the rise of Adolph Hitler.

The deal that ended World War I, in effect, helped start World War II. In fact, when the Nazis invaded France, Hitler ordered that same railroad car, then housed in a museum, be the site where he would “dictate” the terms of the German occupation of France. I Win–You Lose became We Lose.

I Win–You Lose and its negative consequences seem obvious when the stakes are high and you have the historical benefit of hindsight. But the principle applies to even the simplest deal. In our seminars, we often begin with this game. You can try it yourself.

The $10 Game

Take 10 one-dollar bills. Find two people – two partners, husband and wife, people in your office, your kids. Tell them, “If you two can negotiate a deal in 30 seconds on how to divide the $10 between you, you can have the money. But there are three rules:

1. You can't split it, $5 and $5.

2. You can't say $7 and $3 or $6 and $4 and make a side deal to adjust the division later.

3. If you don't make a deal in 30 seconds, I take all $10 back.”

Chances are, both parties will have a hard time resisting the urge to “win” and not “lose.”

You'll hear the hard sell:

It's better for one of us to get it than neither of us so let's make it me.

I agree: As long as the one is me.

The soft sell:

Oh, gosh, whatever you think is fair.

Golly, how about $7 for me and, say, $3 for you?

No way!

The sympathy ploy:

I need the $10. I just ran out of gas.

At least you have a car.

The so-called logic ploy:

We've only got 30 seconds so you take $4, I'll take $6, and we'll both come out ahead.

Yeah, but you're more ahead.

The trust-me ploy:

Give me all $10 and I'll make it up to you later. Trust me.

I've got a better idea. Give it all to me, and you trust me.

BZZZZ! Time's up!

Not only is it likely you'll keep your $10 with this game, but you can learn a lot about why negotiations don't work:

● When you have no preparation time, you don't think; you react.

● When you have time pressure and no preparation time, you revert to habits – usually bad ones. (When someone else is watching and judging your negotiations, it just adds to the pressure.)

● Most people revert to the habit of I Win–You Lose. Each one wants to win so much, is so convinced one can win only if the other loses, that they both lose.

● Sometimes I Win–You Lose turns to I Lose–You Win. “I'll take $4, you take $6.” In the quest to make a deal, any deal, people sometimes give away too much. Never forget, the goal should still be WIN–win– at least maximize and ideally, the big win is yours.”

How Can You Achieve WIN–Win in the $10 Game?

Start with this premise:

Maximize your interests. Determine what is the most you can come away with. Don't give away more than you have to. Get the most of a good deal, not the least of a bad deal. (That's another way of expressing WIN–win.)

Here are some interesting solutions we've seen in the seminars:

Look for points of agreement. Rather than leaping into battle over who gets the most money, look for an idea upon which you both can agree. For example, “If we don't make a deal in 30 seconds, we both get nothing. So, let's start by splitting $8 of the money, $4 for me and $4 for you. Now let's just negotiate over the last $2.” Once you've found one basis for agreement, you may well find more.

Remove ego. Take subjectivity out and replace it with objectivity. Use a coin flip. “Heads, I get $6 and you get $4. Tails, you get $6 and I get $4.” Both sides now have an equal chance to “WIN” or “win.” And, regardless, it happened “fair and square.”

Listen carefully to the rules. They're limiting but not totally restricting if you're really creative. No one said you can't make change. Split the money $4.99 and $5.01. That's only a 2-cent windfall for the supposed winner.

Be creative – look for new approaches. Increase the pie. Again, the rules allow for imaginative solutions. No one said you can't add to the total. Let's say, you put in an extra dollar. Now you're dividing $11. You take $6 and the other side takes $5. Both sides “WIN” by increasing the pie before dividing it.

Unfortunately, most people don't reach these solutions. They fall into the conventional traps of win–lose negotiation.

The Real or the Apparent Adversary?

What most people lose sight of in dividing the money is who they're up against. Each of the two negotiators generally sees the other as the opponent. They're wrong. In reality, they're up against the person holding the money. If the two negotiators don't succeed in making a deal, the one holding the money keeps the money. Before negotiators can find solutions, they have to identify their real obstacles, not just the apparent ones.

The Power of Nice

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