The Art of Negotiation
[ 1 ] Embracing Chaos
As manager of a private investment firm, Jay Sheldon bought a small cable television company in the Midwest some years ago. He didn’t know much about the industry, but the $8 million price seemed right, and the purchase would let him test the water. Jay and his partners quickly got the business into the black. A year later, they wanted to expand by acquiring nearby systems. After running the numbers, they figured that they could pay $11 million, maybe $12 million tops, to buy a second cable company in a neighboring city.
Jay began an extended series of talks with its owner, but after two months of back-and-forth, it became obvious that the parties were far apart on price. “Listen,” the other owner said. “I didn’t post a For Sale sign. You came to me. You’d have to dump fifteen million in cash right on my desk to tempt me. And I’d probably kick myself if I took it.”
Sheldon understood that this wasn’t a bluff, but he also felt the demand was unrealistic. By conventional logic, the parties were deadlocked. If a seller’s bottom line is three million higher than the buyer’s absolute top dollar, you can’t have a deal.
Or can you?
“Let me ask one last question,” Sheldon said before getting up to leave. “If you think your system is worth fifteen million, how about ours?”
“Oh, yours is a bit smaller,” was the answer. “I’d say fourteen or so.”
Sheldon turned the deal upside down. He adroitly became the seller instead of a buyer. In a little more than a year, he flipped his own system
for almost twice what his firm had paid for it (and much of that had been leveraged). He was still bullish on cable, but when he encountered this particular owner, who was rabid about the industry, Sheldon had the agility to transform an apparent impasse into a lucrative sale.
His solution was clever. More important, though, was his nimble mind-set. In the impediment to his hoped-for acquisition, Sheldon spotted the seed of another deal that would serve him even better. When he let go of his initial plan, the insight arrived in a flash.
Sheldon’s agility is the mark of a master negotiator. Yes, preparation is important, but negotiation is a two-way street. We can’t script the process. Whoever sits across the table from us may be just as smart, determined, and fallible as we are. We can’t dictate their agendas, attitudes, or actions any more than we’d let them dominate us. Adaptability is imperative in negotiation from start to finish. Opportunities will pop up. So will obstacles. Power ebbs and flows. Talks that crawl along can race forward or veer off in another direction. Even our own objectives may evolve. We have to make the best of whatever unfolds.
Negotiators like Sheldon are great improvisers. When things aren’t going well, they’ll float a clever proposal, crack a joke, or even challenge the other side. If need be, they’ll also make major changes in strategy. What’s odd, though, is that there isn’t much about improvising in standard negotiation books. That’s true both for the hardball manuals on dominating the other side and for the “win-win” texts that preach joint problem solving. In spite of their obvious differences, both approaches start with the same static premise that you have your given interests and I have mine. The win-win message is that by laying your cards on the table, you can expand the pie by making mutually beneficial trades. The hardball line tells you to chest your cards (and maybe slip a couple up your sleeve).
But there’s much more to negotiation than bluffing and trading. The challenge lies in the fact that preferences, options, and relationships are typically in flux. Theorists may have sidestepped this reality, but top negotiators understand this very well.
I’ve seen this in my own research and also thanks to the work of
at the Program on Negotiation (a cross-disciplinary consortium of negotiation experts at Harvard, Massachusetts Institute of Technology, and Tufts University). In a ten-year project led by Jim Sebenius, we’ve analyzed the work of great negotiators in a wide range of fields. They’ve included diplomats such as George Mitchell, who mediated peace in Northern Ireland; investment banker Bruce Wasserstein; and the visionary artists Christo and Jeanne-Claude.
The contexts in which these virtuosos negotiated differed. Their personalities ran the gamut as well. Some had a certain gravitas, while others were warm and entertaining—even funny. Yet in our workshops with them, they all emphasized the dynamic nature of negotiation and the importance of agility.
The late ambassador Richard Holbrooke, who forged the accord ending the bloodshed in the Balkans, described negotiation as being more like jazz than science. “It’s an improvisation on a theme,” he said. “You know where you want to go, but you don’t know how to get there. It’s not linear.”
UN special envoy Lakhdar Brahimi, having mediated in some of the world’s most violent and unpredictable trouble spots, used a nautical metaphor to express the same idea. Negotiators must always “navigate by sight,” he cautioned. No matter how diligently we prepare, we’re bound to encounter surprises, pleasant and otherwise, that warrant course corrections.
Donald Dell, the sports agent-marketer, made his mark by hammering out huge contracts for basketball players Patrick Ewing and Moses Malone and earning millions in endorsement deals for tennis stars Arthur Ashe and Jimmy Connors. He’s orchestrated bidding wars between rival television networks for broadcasting rights to events like the French Open.
Dell has also done very well negotiating on his own behalf. In 1998 he sold his sports management firm ProServ to an entertainment company for what he describes as “the proverbial offer I couldn’t refuse.” A few years later, after buying much of it back for twenty cents on the dollar, he then resold his interest to Lagadère Unlimited, where he is group president in charge of TV deals, events, and tennis.
For all his success, though, Dell is quick to say that things often don’t go according to plan. “I can’t tell you how many times I arrived prepared for a negotiation, only to have someone or something come up that upset or changed the deal I thought I was doing. The only way to protect yourself one hundred percent against this situation is to assume there is something you don’t know. This advice will not only keep your mind up to speed with the deal and force you to consider other parties’ motivations, but it will also keep your ego in check.”
LEARNING, ADAPTING, AND INFLUENCING
Lesser known but highly talented deal makers make the same point.
Tom Green is a remarkable negotiator who has worked in both the private and public sectors. Tom was a key figure in the sale of a storied baseball franchise and helped restructure a failing health maintenance organization (HMO) that many thought was headed for bankruptcy.
Tom also served on the public interest team that resolved massive litigation against the tobacco industry. Until that time, Big Tobacco had never lost a case or paid a dime to settle health claims out of court. When Mississippi, Massachusetts, and a few other states filed suit to recover Medicaid costs for smoking-related illnesses, their effort seemed quixotic. Yet one by one, Green and his colleagues enlisted forty other states to join the effort. That momentum brought the tobacco companies to the bargaining table. In 1998 the industry bowed to more stringent regulation and agreed to pay $350 billion in damages.
I wrote a case study about this meganegotiation for my MBA course. Tom visited the class the first time I taught it and listened as students analyzed the deft coalition building and old-fashioned horse trading that led to the unexpected outcome. Near the end of the discussion, I asked Tom for his own conclusions. After complimenting students on their observations, he added something that surprised them. The secret of his success, he said, has been “making chaos my friend in negotiation.”
When Tom speaks about embracing chaos, he’s not talking merely
about cases involving scores of parties, thorny issues, and messy politics. Rather, he knows that all negotiations, large and small, are chaotic, since they take place in fluid and often unpredictable environments. But that’s not to say that negotiation is random. The process is propelled by how the parties interact. Understanding how seemingly small moves or gestures can change the course of negotiation can mean the difference between agreement and deadlock.
Saying that negotiators like Tom are agile improvisers doesn’t mean that they make everything up as they go along. Far from it. They’re well prepared, but they don’t hobble themselves with rigid plans. They understand that effective negotiation demands rapid cycles of learning, adapting, and influencing.
Each of those italicized words is critical. Learning, adapting, and influencing take place in most negotiations, of course, but all too often only by happenstance. Instead, I’m talking about deliberate learning. It entails updating your expectations on three levels: (1) the scope of the issues under discussion, (2) the best means for resolving them, and (3) the nature of your relationship with counterparts. “Another way of saying it,” Ambassador Brahimi asserts, “is keep an open mind and be ready to change and adapt to the situation. Don’t ask reality to conform to your blueprint, but transform your blueprint to adapt to reality.”
The learning can’t be passive. It’s not like browsing in a store, checking stock prices, or reading a text. Latent information in those contexts is unchanging. A book has the same number of pages whether you skim it or read it word for word. But the fact is that much of what you must learn in negotiation can only come by interacting with the other party.
Let’s say that you reveal your priorities to your counterparts, hoping to foster a cooperative exchange. If you’re right, you may proceed down a collaborative path. But if, instead, they interpret your disclosure as a sign of weakness, the negotiation could take a turn you wouldn’t have chosen.
Or you make a proposal. It doesn’t work for them. They counter with something that’s not so hot from your point of view. But the two ideas together prompt both of you to come up with a third option that neither party would have conjured on its own. When the issue under discussion changes, you must adapt accordingly. It may be a slight adjustment, or, as it was with Jay Sheldon, it may be a major shift.
Likewise, you seek to influence those on the other side, to convince them of the value of what you’re offering. What they say in response—and how they say it—speaks to that particular point, but it is also feedback on how effectively you’re engaging your counterpart. Maybe your style suits them. If not, you’ll need to change your approach. Beyond the dollars and cents of a potential deal, you are negotiating how to negotiate.
SUCCESS AND FAILURE
Decades ago, in a low-rise section of Manhattan, the governing board of a church on a corner lot asked the Julien Studley real estate firm to conduct an appraisal. Board members hoped that they could fetch a price that would allow them to build elsewhere and have enough money left over to fund their social programs. The firm’s figure was far less than they needed, however, so the church paid the appraisal fee and abandoned its plan.
The young broker handling the matter had another idea, though. What if he could somehow acquire all the parcels on the block? The whole assembly would be worth far more than its component parts. But there were lots of challenges. For starters, his firm didn’t have the resources to buy all the properties, nor did it have a deep-pocketed buyer lined up. And there was the risk that its acquisitions would invite competitors and potential holdouts.
It took time, but the broker and his firm pulled it off. Parcel by parcel,
they met the different needs of various owners. They paid the moving expenses of some elderly tenants in one case. In another, they kept a restaurant open so that its employees would have work until construction began. They even worked out a condo arrangement in which the church could rebuild on its current land. But the firm also got tough with potential competitors. If you ever happen to be in Midtown, just look up, and you can see the result: the gleaming Citibank tower with its sharply angled top.
The story of how it came to be offers powerful lessons about adaptive, improvisational negotiation.
Other cases don’t end as well.
The board of a co-op apartment building enacted a rule requiring everyone to install and pay for child safety bars in the windows. One particular owner refused to pay, insisting that the board pick up the cost: in that case, $902. The board, made up of his neighbors in the building, felt compelled to uphold its legal authority and filed suit, hoping the owner would relent. Instead, he retained his own attorney, and the parties were off to the litigation races.
The co-op board won before the trial judge, lost on appeal, and then got the original judgment reinstated by a still higher court. This battle dragged out almost five years. By that time, their combined legal bills had ballooned to more than $80,000—almost one hundred times the amount originally at stake.
They weren’t finished, either. The objecting owner gave up trying to overturn the judgment, but the parties turned to fighting over whether he had to reimburse the board for its legal costs. When they were finally done, they had broken through the $100,000 barrier.
From the start, each side assumed that the other would come to its senses and abandon the fight. Instead, they both dug themselves ever deeper and kept on shoveling. Nobody planned on investing so much time, money, and emotion in a lose-lose proposition, yet that’s the outcome they got.
The apartment owner himself finally learned his lesson. “I’m a man converted,” he said afterward. “Anything you can possibly do to avoid a lawsuit, do it.” The lawyer for the co-op’s board wasn’t chastened, though. “I think the expenditures here were appropriate and were pretty much
kept to a minimum,” he said. He claimed that his clients “had an idea of what was going on” throughout the case. “There were no surprises.” His attitude betrays a fatalistic commitment to a strategy even when there’s mounting evidence that it’s not working.
Maybe the owner could have “donated” $902 for some other common use without having to back down on the legal principle. Or another resident, caught in the cross fire, might have made the case go away by anonymously sending the board $902 in cash to cover the cost of the window bars—a bargain compared with being assessed for the mushrooming legal costs. The fiasco also might have been averted if just one board member had asked the right question when they filed suit: namely, What’s the worst thing that could happen here? An obvious answer would be that the owner would be just as obstinate as they were.
Cookie-cutter strategies crumble in the turbulence of real-world negotiation. Persistence is often a virtue, but clinging to an obsolete plan is not. Jay Sheldon was intent on buying the nearby cable system. When it became clear that its owner wouldn’t budge on price, however, he didn’t try to beat him down further or cave on his own valuation of that business. Nor did he walk away. Instead, he adapted by crafting a superior plan B. But remember that it was Sheldon’s agility that made it all happen. His counterpart, sitting at the same table, looking at exactly the same facts, didn’t imagine being a buyer until Jay proposed it.
WHAT’S MISSING IN THE CONVENTIONAL WISDOM
The groundbreaking negotiation text Getting to Yes: Negotiating Agreement Without Giving In, by my colleagues Roger Fisher, Bill Ury, and Bruce Patton, was first published thirty years ago. Its timing couldn’t have been better. The book offered a constructive alternative to the then prevailing view that negotiation is inevitably a win-lose proposition, a game won by muscle and deception. Many people were weary with conflict, however, whether in protracted litigation, work stoppages, or in troubled areas of the world like the Middle East.
The authors presented a five-point method, one relevant to any context, from renting an apartment to international diplomacy:
1. Focus on interests, not positions.
2. Separate the people from the problem.
3. Invent options for mutual gain.
4. Insist on objective criteria.
5. Develop your best alternative to a negotiated agreement, or BATNA (your walkaway if there is no deal).
This interest-based approach was widely embraced as win-win negotiation (although that term never appears in Getting to Yes). At the core, it was an appeal to enlightened self-interest.
The book remains a strong rebuttal to old-fashioned hardball tactics. Rather than locking into fixed positions, negotiators should dig deeper and work from underlying interests. If you’re seeking a new job, don’t haggle over salary and risk getting the relationship off to a bad start. Instead, look for other benefits that might be more valuable than a few more dollars of straight pay. With a little inventiveness, you can transform many zero-sum problems into opportunities for mutual gain. And even tough bargainers with no concern about fairness should be tempted by the prospect of expanding the pie.
Readers were also reminded of the importance of relationships and reputation. Aggressive tactics may work in one-time, price-only transactions between strangers, but there are costs. Most people who’ve been strong-armed once don’t come back for another drubbing.
Books such as Jim Camp’s Start with No: America’s Number One Negotiating Coach Explains Why Win-Win Is a Disastrous Strategy, and How You Can Beat It ignore the fact that in today’s highly networked world, what goes around often comes around. Nor do they explain what’s achieved if both parties stonewall and just wait for somebody to blink.
Sometimes the bargaining table is tilted, of course. When that’s the case, Getting to Yes emphasizes the importance of improving one’s BATNA. It’s a matter of weighing offers on the table against the best you
realistically can do if there’s no deal. Having a good fallback naturally strengthens your bargaining hand. If you’re holding lousy cards, then you may have to accept terms that you’re not wild about.
So two cheers for win-win negotiation. Books based on that model freed negotiators from the notion that “more for you means less for me.” They opened people’s minds to the problem-solving potential latent in many negotiations.
A lot of good work on negotiation has been done since the publication of Getting to Yes. But the basic framework rests implicitly on static assumptions about interests, options, circumstances, and relationships, when these factors tend to be fluid and ambiguous. Just as military strategists acknowledge the fog of war, negotiators must confront the haze that obscures the territory that they explore.
The standard model doesn’t capture the complexity of real-world negotiation any more than stuffed birds in a museum reveal the marvel of flight, or show us how those creatures dart and soar in the breeze. Instead of a snapshot, we need a moving picture that illuminates how the negotiation process evolves over time. That’s the aim of this book.
I’m not out on a limb saying that basic win-win theory whistles past thorny negotiation problems. Roger Fisher himself often began presentations by ripping his bestseller in two to demonstrate the need for fresh thinking. To see why, take a second look at two celebrated axioms on which the conventional model rests. One is “Focus on interests, not positions.” The other is “Develop your BATNA” (your walkaway option).
First, regarding interests, the hard truth is that we often can’t know what our interests are until we’re really negotiating. The suggestion that we don’t know our own minds may seem strange, even insulting. But seasoned negotiators know this well. Bear with me.
Negotiation often leads us somewhere unexpected, sometimes happily so. Say that you’re trying to buy a particular house. After analyzing the market (and your bank account), you swear that the absolute maximum you’ll pay is $350,000, preferably much less. Yet several days later, you shell out $375,000 to close the deal. Does that mean you negotiated badly? Possibly, if you got fast-talked into overpaying. Then again, maybe not. Violating your initial limit could make sense if the property proved
to be in better shape than you expected or you learned that similar homes in the area recently sold for much more. You paid more than you planned to, but maybe you still got a bargain.
Interests are fluid, so we need to be flexible ourselves. But that complicates negotiation strategy and decision making. Stable goals give us discipline. They help us know when to say yes and when to walk away. If we dispense with objectives, we can rationalize any outcome. Surely that can’t be right. When Tom Green told my students about the importance of embracing the chaos of negotiation, he tacked on a critical corollary. It’s imperative, he said, “to stay on beam.”
Likewise, the BATNA concept is crisp in theory but messy in practice. It presumes that negotiations come down to a simple decision: deal or no deal. Were that true, whenever someone offers you something slightly better than your walkaway, you should take it. That could mean settling cheap when, with some creativity, you might grow the pie (or by persisting, get a larger slice of it). Then again, you don’t want to push so hard that you risk losing what you already have in hand. Knowing when to say yes can be tricky.
The standard BATNA model also isn’t helpful when you’re negotiating with no clear fallback. Just ask a business school graduate interviewing for jobs with no other offer in hand. When she’s negotiating with one company, her BATNA is the uncertain prospect of landing a position elsewhere. How should she figure her walkaway when she has no immediate options? Few books address this common problem. This one does.
The elusiveness of interests and messiness of BATNAs collide when you have to juggle multiple negotiations. That’s what happens when you comparison shop for a car at several dealerships. You may know generally what kind of vehicle you’d like, but you still want a great price. When you’re negotiating with one salesperson, your fallback is often the uncertain prospect of how well you might do with another.
My colleague (call her Carol Griffin) and her husband, Don, faced this problem when they were looking for their first house. Carol is a brilliant decision theorist, so her preparation was off the charts. She researched the local market and compared school systems. She even test
drove different commuting routes. Then she plugged all the data into a spreadsheet and weighted the factors so that they could rank different properties.
Looking back now, however, Carol admits that she and Don didn’t know what they wanted until they toured various properties and began to negotiate. One house was priced right but needed a lot of work. Another had smaller rooms but also a gorgeous yard. Still others that had looked good online somehow had less appeal in person.
Some factors that they cared about—heating costs and the proximity to schools—were easy to compute, but how they actually felt about different places was not. With their apartment lease about to expire, they faced hard BATNA choices. For the house they loved, should they keep bargaining to knock down the price to an affordable number? Or should they settle for a less expensive place that they liked all right before some other buyer snapped up that one? (We won’t even think about how much harder this would have been if Carol and Don didn’t see eye to eye themselves.)
How we resolve such dilemmas isn’t put to the test until we have to decide between a given bird near at hand versus the chance of snaring a more enticing one deeper in the bush. It’s not simply how much better the latter might be objectively. We also have to reckon the odds of winning it—and taste how we’ll feel if we end up losing out on both deals.
Savvy real estate brokers understand that, like the Griffins, many clients don’t really know what they want. University of Virginia psychologist Tim Wilson describes how his own agent listens politely when prospective buyers list their priorities, but then blithely ignores them and shows them many different properties. “On the initial visits, the agent pays close attention to her clients’ emotional reactions as they walk through the houses, trying to deduce what they are really looking for.” According to Wilson, brokers have a saying: “Buyers lie.” It’s not deliberate. People just don’t know their own minds. “One reason my real estate agent is so successful is that she is quite skilled at inferring what her clients want and often knows their preferences better than the clients themselves do.”
Carol and Don played it safe by working out a deal for the less expensive place. Sometimes, though, they get wistful driving past their dream
house, four blocks away. They wonder if they could have haggled a lower price by being more assertive. But because of the inherent uncertainty of negotiation, they can never know for sure.
That kind of second-guessing does little good. Instead, you’re better off critiquing how you negotiated. On this score, the Griffins did well. Carol’s meticulous preparation could only reflect attributes that were easy to quantify. It couldn’t capture how they felt about particular houses until they took their tours. Still, it served as a valuable template against which they could check their judgments. Before scratching a house that they had rated high, it forced them to ask what it was that they didn’t like and how much that mattered. They shifted their priorities but in a disciplined manner.
The Griffins learned and adapted along the way. Some owners they negotiated with seemed to be testing the market on the chance that somebody would make an offer they couldn’t refuse. Others were in more of a hurry to sell, which gave the Griffins more leverage than they anticipated. In the end, the people who sold their home to the Griffins understood they were careful shoppers and gave them a price that was too good to pass up.
This book explains how to become a more agile and effective negotiator. It’s not a matter of being somewhat prepared and a little flexible. If you try that, you’ll fall between the cracks. Instead, managing uncertainty should be the cornerstone of your negotiation strategy. Part 1 lays out a dynamic model for analyzing and conducting negotiations. Part 2 is about mind-set and the techniques for learning, adapting, and influencing on the fly. Part 3 situates these concepts in each phase of negotiation, from openings, through critical moments, to closing. Part 4, “Mastery,” knits together creativity, ongoing learning, and ethics.
Specifically, the first part—“A Sense of Direction”—deals with the role of ambiguity, change, and luck inherent in any negotiation. Understanding
the nature of the environment is step one in developing adaptive strategy for traversing it. But simply acknowledging uncertainty is not enough. Master negotiators bake it into their strategy and turn it to their advantage.
The upcoming chapter, “A Map of the Pyrenees,” digs deeper into the underlying challenges of unpredictability introduced here. It poses three key questions you should address before negotiating. The chapter after that, “Prospecting,” offers preparation tools for setting goals, weighing trade-offs, assessing the upside, and determining when to walk away. While chapters 2 and 3 focus on what you are seeking (your substantive goals), chapter 4, “Plan B,” is about strategy and process—the how—of searching for agreement. It spells out nine strategic principles for venturing forward.
The second part of the book—“Improvising”—zeroes in on micro-interactions on a tactical level. Being nimble is about both mind-set and technique. This section begins with a chapter entitled “Presence of Mind.” To perform at your best, you must be prepared to negotiate both mentally and emotionally. That requires a paradoxical ability to be both calm and alert, patient and proactive, creative yet fully grounded.
Other chapters in this second section dig into improvisational principles and techniques. In the chapter “The Swing of Things,” you’ll see how jazz musicians, even complete strangers, create new music on the spot. They know when to solo and when to harmonize. They even dare to make mistakes. Then, as counterpoint, in “Situational Awareness,” you’ll see how concepts from the battlefield, chess, and competitive sports apply not only to hardball settlement of lawsuits and labor disputes but also to collaborative transactions.
The third part of the book—“Managing the Process”—applies these practices to the flow of negotiation. The “Openings” chapter compares transcripts of two pairs of veteran negotiators dealing with the same problem. One pair slips into taking potshots at each other. The other, instinctively following the rules of jazz and improv, just as quickly gets into sync.
Then the “Critical Moments” chapter examines tipping points in negotiations: junctures where you have to make decisions that are hard to unwind. Making an offer that you can’t take back is one example. Dealing
with threats or outbursts is another. A chapter on “Closing” wraps up this section. If someone makes you an attractive proposal, when should you take it and when should you press for more?
The last portion of the book—“Mastery”—illuminates the attributes that separate capable negotiators from the stars. One is creativity, as you’ll see in the chapter “Silk Purses.” People such as Jay Sheldon (the investor who salvaged his cable deal) have the knack for finding agreement where others might see only deadlock. Mastery also entails an intriguing mix of confidence and humility. In the chapter “Wicked Learning,” you’ll discover that the best negotiators learn the right lessons from their experience. They aren’t intoxicated by prior success.
The book’s concluding chapter, “Fair Enough,” examines ethical issues inherent in all negotiations. The most difficult choices aren’t about right and wrong; rather, they require reconciling competing values and obligations. Then the appendix presents twenty-five reasons to embrace chaos in negotiation, a thematic listing of the key principles and methods of the learn-adapt-and-influence approach. This list is a quick refresher for crafting strategy.
I’m confident that a thoughtful reading of this book will make you a better negotiator, whether you’re a relative novice or have lots of experience under your belt. The advice here is built on the best practices of top negotiators. It offers a fresh and practical slant on negotiation, one that may push you to rethink your own habits and assumptions. I hope that’s liberating.
■ Anticipate that goals, interests, and walkaway alternatives might evolve in ways that are to your advantage or detriment.
■ Understand that negotiation is an interactive process. Your actions and statements may influence your counterparts in ways that you did not expect or intend.
■ Maximize your negotiation effectiveness by crafting a robust strategy.
■ Be prepared to improvise.