Negotiating might be central to a solicitor’s role, and to be a good negotiator you need to be able to hone your selling technique. Ciarán Fenton provides a 3-step guide
All solicitors are
negotiators. But not all solicitors are good negotiators in all situations. One
general counsel told me that many solicitors in his team struggle to see the
bigger picture in negotiations, are too narrowly focused, and consequently lose
Good negotiation is about securing
a win-win outcome, not win-lose. This necessarily involves compromise and,
above all, an ability to sell. Many solicitors achieve much less than they
could because they hate the process of selling. They fear rejection, are
uncomfortable asking for anything, and don’t know how to sell well.Good selling
technique is essentially about needs analysis. This can be broken down into
out how the other side feels
The other side’s needs may
not be logical or rational, but they are always driven by feelings.
Ask lots of open, ‘biased’
questions – Who? What? When? Where? How? Listen to the nuances of the feelings
expressed in the answers. You must listen carefully, not just to catch someone
out, but to understand them.
You can check that you
have ‘bottomed out’ their needs by using two simple techniques. First, briefly
summarise back to them your understanding of their needs. If you get it right,
watch for a physical response – often a nod. This, as the psychologists tell
us, is the involuntary sign people give when they feel heard.
The second technique, which
I have used in negotiations and found works every time, is when you feel you’ve
asked the last question, ask one more. This stretch will usually bring to the
surface a deeper truth.
how your proposal will meet their needs
This step is short,
because it’s straightforward, albeit difficult: demonstrate, rather than
assert, how your proposal will meet their specific needs, as well as your own.
the gap between their needs and your proposal
Start by asking: ‘If 10 is
having a deal, and 0 is not having one, where are we now?’. Unless things
have gone horribly wrong, the typical answer is ‘7’. Next, ask: ‘What has
to happen for us all to turn the 7 into a 10?’. And then, say nothing.
This silence is crucial. No matter how uncomfortable the silence becomes, don’t
break it except to repeat the question. They will fill the silence.
When you are clear on the
points which make up the gap, address each point carefully in turn. There are
various techniques you can use to close the gap, but the most important is to
remind the other side about the shared purpose of the negotiation. This purpose
can get lost in the heat of the negotiation. Unless there is a shared purpose,
there isn’t a negotiation. It’s an imposition.
change your behaviour
Confront which part of the
selling process you hate most, and why. Once you have isolated your fear and
its origin, the final step is to become comfortable observing your process or,
to use the current jargon, to be mindful. Mindfulness is about separating yourself
from your thinking, as in: ‘There I go again not asking for what I want, just
demanding it’, but in a manner which is not self-destructive.
Then you can to start
making small changes in your behaviour – say, changing 1 interaction in every
10. That’s a small change, but it’s worthwhile, because it creates a virtuous
cycle: the more you change yourself, the more success you will have in your
A longer version of this article was first published in the January 2017 edition
the online magazine of the Law Society’s In-house Division,
our community for in-house lawyers
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