Getting to Yes: Negotiating Agreement without Giving In

by Roger Fisher

One lawyer we know attributes his success directly to his ability to invent solutions advantageous to both his client and the other side. He expands the pie before dividing it. Skill at inventing options is one of the most useful assets a negotiator can have.

As valuable as it is to have many options, people involved in a negotiation rarely sense a need for them.

In most negotiations there are four major obstacles that inhibit the inventing of an abundance of options: (1) premature judgment; (2) searching for the single answer; (3) the assumption of a fixed pie; and (4) thinking that “solving their problem is their problem.” To overcome these constraints, you need to understand them.

Judgment hinders imagination.

In most people’s minds, inventing simply is not part of the negotiating process. People see their job as narrowing the gap between positions, not broadening the options available.

By looking from the outset for the single best answer, you are likely to short-circuit a wiser decision-making process in which you select from a large number of possible answers.

To invent creative options, then, you will need to (1) separate the act of inventing options from the act of judging them; (2) broaden the options on the table rather than look for a single answer; (3) search for mutual gains; and (4) invent ways of making their decisions easy.

brainstorming session is designed to produce as many ideas as possible to solve the problem at hand. The key ground rule is to postpone all criticism and evaluation of ideas.

Nevertheless, joint brainstorming sessions have the great advantages of producing ideas that take into account the interests of all those involved,

To protect yourself when brainstorming with the other side, distinguish the brainstorming session explicitly from a negotiating session where people state official views and speak on the record. People are so accustomed to meeting for the purpose of reaching agreement that any other purpose needs to be clearly stated.

You can also put on the table options with which you obviously disagree. “I could give you the house for nothing, or you could pay me a million dollars in cash for it, or . . . .” Since you are plainly not proposing either of these ideas, the ones that follow are labeled as mere possibilities, not proposals.

But whether you brainstorm together or not, separating the act of developing options from the act of deciding on them is extremely useful in any negotiation.

consists of questions, not assertions; it is open, not closed: “One option is . . . . What other options have you thought of?” “What if we agreed to this?” “How about doing it this way?” “How would this work?” “What would be wrong with that?” Invent before you decide.

“If this theoretical approach appears useful, what is the diagnosis behind it?”

then using that theory to invent more options. An example

Look through the eyes of different experts. Another way to generate multiple options is to examine your problem from the perspective of different professions and disciplines.

In thinking up possible solutions to a dispute over custody of a child, for example, look at the problem as it might be seen by an educator, a banker, a psychiatrist, a civil rights lawyer, a minister, a nutritionist, a doctor, a feminist, a football coach, or one with some other special point of view.

if you and the other side cannot reach first-order agreement, you can usually reach second-order agreement—that is, agree on where you disagree, so that you both know the issues in dispute, which are not always obvious.

The relationship between the sides, often taken for granted and overlooked, frequently outweighs in importance the outcome of any particular issue.

First, shared interests lie latent in every negotiation.

Do we have a shared interest in preserving our relationship? What opportunities lie ahead for cooperation and mutual benefit? What costs would we bear if negotiations broke off? Are there common principles, like a fair price, that we both can respect?

Dovetail differing interests. Consider once again the two children quarreling over an orange. Each child wanted the orange, so they split it, failing to realize that one wanted only the fruit to eat and the other only the peel for baking.

This is genuinely startling if you think about it. People generally assume that differences between two parties create the problem. Yet differences can also lead to a solution.

Any difference in interests?

Different beliefs?

Different values placed on time?

The buyer is willing to pay a higher price for a car if it is possible to pay over time; the seller is willing to accept payment later for a higher price.

Different forecasts?

Differences in aversion to risk?

Ask for their preferences. One way to dovetail interests is to invent several options all equally acceptable to you and ask the other side which one they prefer.

You want to know what is preferable, not necessarily what is acceptable. You can then take that option, work with it some more, and again present two or more variants, asking which one they prefer.

For example, the agent for the sports star might ask the team owner: “What meets your interests better, a salary of $8.75 million a year for four years, or $10 million a year for three years? The latter? OK, how about between that and $7.5 million a year for three years with a $10 million bonus in each year that Fernando is voted MVP or the team wins the championship?”

Look for items that are of low cost to you and high benefit to them, and vice versa.

Differences in interests, priorities, beliefs, forecasts, and attitudes toward risk all make dovetailing possible. A negotiator’s motto could be “Vive la différence!”

You cannot negotiate successfully with an abstraction like “Houston” or “the University of California.”

What decision? In Chapter 2 we discussed how one can understand the other side’s interests by analyzing their currently perceived choice. Now you are trying to generate options that will so change their choice that they might then decide in a way satisfactory to you. Your task is to give them not a problem but an answer, to give them not a tough decision but an easy one. It is crucial in that process to focus your attention on the content of the decision itself. That decision is often impeded by uncertainty.

Frequently you want as much as you can get, but you yourself do not know how much that is. You are likely to say, in effect, “Come up with something and I will tell you if it is enough.” That may seem reasonable to you, but when you look at it from the other’s point of view, you will understand the need to invent a more appealing request. For whatever they do or say, you are likely to consider that merely a floor—and ask for more. Requesting the other side to be “more forthcoming” will probably not produce a decision you want.

It is usually easier, for example, to refrain from doing something not being done than to stop action already underway. And it is easier to cease doing something than to undertake an entirely new course of action. If workers want music on the job, it will be easier for the company to agree not to interfere for a few weeks with an experimental employee-run program than for the company to agree to run such a program.

Because most people are strongly influenced by their notions of legitimacy, one effective way to develop solutions easy for the other side to accept is to shape them so that they will appear legitimate. The other side is more likely to accept a solution if it seems the right thing to do—right in terms of being fair, legal, honorable, and so forth.

Concentrate both on making them aware of the consequences they can expect if they do decide as you wish and on improving those consequences from their point of view.

How can you make your offers more credible? What are some specific things that they might like? Would they like to be given credit for having made the final proposal? Would they like to make the announcement? What can you invent that might be attractive to them but low in cost to yourself?

To evaluate an option from the other side’s point of view, consider how they might be cri...

Write out a sentence or two illustrating what the other side’s most powerful critic might say about the decision...

Then write out a couple of sentences with which the other side might reply in defense. Such an exercise will help you appreciate the restraints within which the other side is negotiating. It should help you generate options that will adequately meet...

A final test of an option is to write it out in the form of a “yesable proposition.” Try to draft a proposal to which their responding with the single word “yes” would be sufficient, realistic, and operational. When you can do so, you will have reduced the risk that your immediate self-int...

No negotiation is likely to be efficient or amicable if you pit your will against theirs, and either you have to back down or they do.

If trying to settle differences of interest on the basis of will has such high costs, the solution is to negotiate on some basis independent of the will of either side—that is, on the basis of objective criteria.

Why not insist that a negotiated price, for example, be based on some standard such as market value, replacement cost, depreciated book value, or competitive prices, instead of whatever the seller demands? In short, the approach is to commit yourself to reaching a solution based on principle, not pressure. Concentrate on the merits of the problem, not the mettle of the parties. Be open to reason, but closed to threats.

It is far easier to deal with people when both of you are discussing objective standards for settling a problem instead of trying to force each other to back down.

Approaching agreement through discussion of objective criteria also reduces the number of commitments that each side must make and then unmake as they move toward agreement. In positional bargaining, negotiators spend much of the time defending their position and attacking the other side’s. People using objective criteria tend to use time more efficiently talking about possible standards and solutions.