I) The Problem

– Don’t bargain over Position


I want it for $10, you want to sell it for $100 – we negotiate into the middle – both giving stuff up.
Your ego becomes identified with your position.
There can be so many other factors to the bargain than initially negotiated and looked at.
Focus on resolving the underlying concern.
  1. People – Separate the people from problem
  2. Interests – Focus on interests not positions
  3. Options – Generate a variety of possibilities before deciding what to do
  4. Criteria – Insist that the result be based on some objective standard


II) The Method

1) Separate the people from the problems


Negotiators are people first. They are/have
– emotions
– values
– backgrounds
– unpredictable


Desire to feel good about oneself and looking good in front of others.


– Perceptions different – educate
– Emotions run high – let them steam off
– Misunderstandings exist – communicate




Their thinking is your problem – UNDERSTAND IT!


Often people try to understand more and more about the object the negotiate about – but the real problem lies in people’s heads.


Put yourself in their shoes.


Don’t deduce their intentions from your fears (assuming the worst).


Don’t blame them for your problem.
Blame never leads to anything good. Separate blame on people from facts and observations.


Discuss each other perceptions.


Look for opportunities to act inconsistently with their perceptions.
Surprise them by doing something big or out of character.


Give them a stake in the outcome by making sure they participate.
Involve in process of reaching conclusion. Involve the other side, involve them early. Ask for advice. Give credit for ideas.


Face saving: Make your proposals consistent with their values.
Often deals are not accepted because the other person doesn’t want to be seen like backing down – reframe problem and solution.




Make emotions explicit and acknowledge them.
Underscores seriousness.


Let other side let off steam.


Don’t react to emotional outbursts.


Use symbolic gestures.
Eating together, gift, etc






1) Not talking to each other
Impressing third parties and not talking at all


2) Paying attention
Note if they really listen and how often you can’t repeat what they say


3) Misunderstanding
Make sure aligned.




– Listen actively and acknowledge what is being said
Ask for clarification
Ask to be repeated
Summarise if understood correctly


– Speak to be understood
Remember to explain TO THEM not just ramble
Reduce people involved


– Speak about yourself, not them
“I feel let down” rather than “You broke your word”
“We feel discriminated” rather than “You’re a racist”
Easy to anger vs about yourself tough to dispute. “I feel like…”


– Speak for a purpose
When you talk – talk with a reason and for a purpose.


Prevention works best

Best to build personal and organisational relationship beforehand


Build a working relationship
Knowing other side as friend or friend of friend really helps!


Face the problem, not the people
Think of it as partners side by side search for fair agreement advantageous to each.
You can mention that straight out.
– same side of table
– mention commonalities (we’re both lawyers)
– ask for favour before


2) Focus on Interests not Positions


Interest defines the problem


Interest – what caused you to decide
Position – what you decided upon


Ask Why?
to find out their interest behind position


Ask Why Not?
Think about their choices.


Realise that every side has multiple interests.


Most powerful interests are basic human needs.
– security
– economic wellbeing
– sense of belonging
– recognition
– control over one’s life


Talking about interests
More likely they will happen if you express them.


Make them come alive.
– importance
– significance
– be specific


Acknowledge their interest as part of the problem. 
People listen better once they see you understood them.


Put the problem before the answer.
Interest and problem first before solution.


Look forward not back.


Be concrete but flexible.


Be hard on the problem, soft on the people.


4) Invent Options for Mutual Gain


Think along mutliple dimensions not just one (ie money).




1) Premature Judgement
You make early assumptions as to what the other party might think – Talk!


2) Searching for the single answer
Premature closure – don’t just think along one line.


3) Assumption of a fixed pie
It’s and either/or – it isn’t


4) Thinking that solving the problem is their problem
Make solving their problem your problem – you need to solve it to gain.




1) Separate inventing from deciding
– brainstorm beforehand
– postpone evaluation of ideas


2) Consider brainstorming with the other party


3) Broaden your options


– Look through eyes of different experts


– Arguments of various strengths
Permanent vs trial


– Break problem into pieces


4) Look for mutual gains


– Identify shared interest
It’s always there
They are opportunities
Stressing shared interest can make parties more amicable


– Differing interests, even though similar


Different belief?
Different value placed?
Different forecast?
Difference in risk aversion?


– Ask for their preferences


Look for things that are low value for you but high value to someone else.


5) Make their decision easy


– Focus on decision maker


– Don’t give them a problem, but an answer


– Look for precedent


– Make offers not threats


5) Insist on using objective criteria


– Based on principle, not pressure
Check the market, comparables, third party


– Fair standards
original cost minus depreciation
could have been sold for
market value
replacement cost
what the court should put on as value


– Fair procedures
one party breaks into pieces the other chooses
take turns
draw lots
let someone else decide


Don’t yield pressure – always argue about the principle.


III) Yes, but…


1) What if they are more powerful?


Develop your BATNA
Best Alternative to a Negotiated Agreement


Establish your bottom line – least money you’d take.


Helps you develop creative solutions.


Decide on a tripwire – better than BATNA but something that signals that things are going wrong and you need to change strategies


Strengthen your BATNA – make it real and as good as realistic and possible.
Strengthens your bargaining power.


2) What if they won’t play?


– What YOU can do

start doing all of the above – play a new game
merit and interest based rather than position


– What THEY can do – Negotiation Jujitsu

Do not react
Do not push back
Sidestep and deflect against problem


Treat attacks and assertions as one option and look at the interest behind it
See how that option addresses the problem


Don’t defend ideas, invite criticism and advice


Ask what they would do in your position


Make them consider what would happen if the things they ask for come true


Let them blow off steam


Ask questions and pause
Silence is powerful to let them argue with themselves


– What a THIRD PARTY can do – One-Text Procedure


Good mediator asks lots of questions to check for interests and the WHY?


Develop prototype which everyone can criticise and no-one’s ego is bound to.
As you reiterate last question – yes or no?
you know what you’re getting


Start “one-text” one draft which everyone collaborates on.


…please correct me if I’m wrong…
– invites criticism


…we appreciate what you’ve done for us…
– separate person from problem


…our concern is fairness…
– base it on the principle


… could I ask you a couple questions to see if my facts are right?
– ask ask ask


…whats the principle behind your action?
…Let me see if I understand what you’re saying
– try to understand them


…Let me get back to you
– don’t make important decisions on the go


3) What if they use dirty tricks?


Negotiate the rules of the game


1) Recognise tactic
2) Raise explicitly
3) Question legitimacy and desirability


– Separate people from problem


Don’t attack them for being illegitimate, address the problem


– Focus on interest not position


– Invent options for mutual gains


– Insist on using objective criteria


Some common tricky tactics


1) Deliberate deception


Misrepresentation of facts, authority or intentions
Phony facts – lies
Ambiguous authority – clearly ask otherwise two negotiations – we can treat this as a draft if approved fine, otherwise we start from anew
Dubious intentions – build compliance features into contract
Not disclosing everything isn’t deception – maybe use 3rd party


2) Psychological warfare


Stressful situation – just say it change environments
Personal attacks – say it
Good Bad guy – ask for principle of bad guy
Threats –
“we have prepared countermoves but wanted to agree instead”
“I only negotiate on merits my reputation is build on this”


3) Positional pressure bargaining


Don’t want to negotiate – recognise, ask for interest, base on principles “is that fair? how we wanna do this?”


Extreme demands – ask for the principles to make them look ridiculous


Escalating demands – reopening negotiations which were closed
stop think raise it base it on principle


Lockin tactics – deemphasise the commitment so the other party can back down – don’t put it into center


Hardhearted partner – speak directly to partner or get it in writing


Calculated delay – high cost game, look for other options


Take it or leave it – pretend you didn’t hear it, look for face saving way for them to get out – change in environement ie


Don’t be a victim – raise it early what kind  game everyone’s playing


IV) In conclusion


It’s not about winning – it’s about creating a better outcome for both parties.
Getting to Yes Roger Fisher 2017.jpg