How to get what you want

The recent multi-billion-pound High Court clash between Chelsea Football Club owner Roman Abramovich and the exiled Russian oligarch Boris Berezovsky highlights the high stakes that can be involved in high-net-worth legal battles. While everyday legal practice is unlikely to attract such media frenzy, in corporate and individual cases alike, the effective use of negotiation is just as essential. Even within the initial stages of a closed private client environment, negotiation is necessary to understand the client’s proposition and so meet their needs.

Front line

Today’s best-performing firms have demonstrated that the key to success is simple: transforming negotiation within the organisation from an individual competency into a practice-wide capability. In implementing this change, firms should remember that fully developed behavioural skills remain vital for partners and members of the business development team on the negotiating front line.

With mounting competition from larger multiple practices, improved performance in structured negotiation now needs to be given greater priority. In particular, there are key critical areas that firms can address when attempting to re-engineer a formal approach to negotiations in order to deliver significant and measurable improvements in performance. These include standardising and documenting the end-to-end negotiation process, ensuring consistent practice-wide collaboration and measuring negotiation success.

Whatever the size of the organisation, obtaining internal alignment on the negotiation objectives can be challenging, with many firms failing to realise the full benefits of this approach by not embedding a consistent process throughout the business. Yet, while a practice-wide process will undoubtedly help to secure a consistent, unified approach to negotiation, skills training for those involved in the process, whether ‘buying’ or ‘selling’, remains a central component to broader performance improvement.

So, what separates successful negotiators from their less effective counterparts in securing long-term, mutually profitable partnerships with clients or intermediaries? A good performance improvement programme will recognise the central importance of behavioural skills in enabling a creative approach to bargaining that adds value for both parties. This involves improving negotiating ability to generate a stronger likelihood of achieving win-win outcomes.

Crucially, this should include – on both sides – a sense of optimism that a positive outcome is possible, which means defining some shared goals. Whatever the starting point for the discussion, and however it may appear to the outsider, the vast majority of negotiations are about much more than money. The key to a successful outcome can, therefore, lie in determining the other drivers and identifying their relative importance within the whole negotiation.

Driving range

When identifying and exploring the implications of these additional drivers, it is important to recognise the key difference between preparation and planning. Average negotiators may convince themselves that they have prepared well if they have compiled lots of data, statistics and practical examples of success. Yet all this effort could be in vain if they fail to plan a corresponding strategy that will derive maximum advantage from this research during the actual negotiation.

The best negotiators will use this information creatively to identify all the anticipated trades available to them – including prioritising the various issues and using them to form bargaining strategy. They will also recognise how best to deploy these themes in order to achieve the desired result.

At the same time, it is important to take stock of where the power balance lies both in the planning process and in the negotiation itself. Some negotiators do not realise what power they have, while others use it ineffectively – or even abuse it.

While legal professionals untrained in the art of negotiation may think they are already good negotiators, the truth is their own methods are likely to have little or no impact – and could even damage the negotiating climate. There are, however, some proven techniques that can help achieve the desired outcome for both parties (see box).

While it may at first sight seem like an unnecessary expense, improving negotiation skills can benefit significantly private client practice. Just like any other proficiency, the art of negotiation can be learned through good models and frequent practise. Conversely, poor negotiation skills may result in outcomes that suit nobody – the ramifications of which will cause damage long after the parties have packed up their documents and gone home.

• Think long term. When the pressure is on, it’s tempting to want to strike a deal that will work for now. Such short-term thinking is likely to prove a poor negotiating tactic. The best approach will take time to consider the long-term implications of any decision or concession before making a commitment. 
• Listen carefully. To ensure the other party understands our point of view it is natural to place the emphasis on talking. Yet skilled negotiators are also good listeners and will therefore typically adopt a more consultative style, asking twice as many questions as the average negotiator to define the other party’s position. Identifying their real needs and challenges should help maintain clarity throughout what can be a complex and drawn-out process. Similarly, a list of well thought-out questions is often a more effective means of challenging the other party’s position than presenting a string of knee-jerk counter proposals.
• Express yourself. Exceptional negotiators are not poker-faced and will express their feelings and emotions. This encourages openness and is more likely to create a climate of trust with the other party. 
• Be selective. It’s a common misconception to think that the more arguments you use, the more likely you are to ‘win’ a negotiation. While it is, of course, necessary to provide reasons to support your case, including too many can run the risk of the core arguments being eroded. In order to avoid diluting their case, talented negotiators will use just one strong argument and reinforcing it as necessary. A second supporting argument will only be introduced if the first becomes genuinely untenable. 
• Avoid emphasising ‘fairness’. One of the biggest criticisms that observers of recent disputes in the public gaze have pointed out is the presence of ‘irritators’ – behaviours that praise their own position and condescend the other party. These might include descriptors such as ‘reasonable’, or ‘generous’ which may seem inconsequential but, in the context of heated exchanges, could have far-reaching effects.  For example, a provocative negotiator may describe their own offer as ‘fair’ (thereby implying that the other side is ‘unfair’) or tell the other side what is good for them. This approach is rarely persuasive but will rather have a negative impact on the climate of the negotiation.

Peter Fleming is business director, legal services, at Huthwaite International