Getting to Yes: Negotiating Agreement without Giving In

by Roger Fisher

As a last resort, turn to your BATNA (your Best Alternative To a Negotiated Agreement) and walk out. “It’s my impression that you’re not interested in negotiating in a way that we both think will produce results. Here’s my phone number. If I’m mistaken, I’m...

Tricky tactics can be divided into three categories: deliberate deception, psychological warfare, and positional pressure tactics.

Disentangle the people from the problem. Unless you have good reason to trust somebody, don’t. This does not mean calling him a liar; rather it means making the negotiation proceed independent of trust.

No seller is likely to give you a watch or a car simply in exchange for your statement that you have money in the bank.

Ambiguous authority.

This is a bad situation to fall into. If only you have authority to make concessions, only you will make concessions.

Before starting on any give-and-take, find out about the authority on the other side. It is perfectly legitimate to inquire, “Just how much authority do you have in this particular negotiation?” If the answer is ambiguous, you may wish to talk to someone with real authority or to make clear that you on your side are reserving equal freedom to reconsider any point.

“All right. We will treat it as a joint draft to which neither side is committed. You check with your boss and I’ll sleep on it and see if I come up with any changes I want to suggest tomorrow.”

“If your boss approves this draft tomorrow, I’ll stick by it. Otherwise each of us should feel free to propose changes.”

“nothing is agreed until everything is agreed,” so that any effort to reopen one issue automatically reopens all issues.

“Look, my client is afraid those child support payments simply aren’t going to be made. Rather than monthly payments, how about giving her equity in the house?” The husband’s lawyer may say, “My client is perfectly trustworthy. We’ll put it in writing that he will pay child support regularly.” To which you might respond, “It’s not a matter of trust. Are you certain that your client will pay?” “Of course.” “A hundred percent certain?” “Yes, I’m a hundred percent certain.” “Then you won’t mind a contingent agreement. Your client will agree to make child support payments. We’ll provide that if, for some inexplicable reason that you estimate at zero percent probability, he misses two payments, my client will get the equity in the house (minus, of course, the amount your client has already paid out in child support) and your client will no longer be liable for child support.”

Less than full disclosure is not the same as deception.

“What is the most you would pay if you had to?” would be along the following lines: “Let’s not put ourselves under such a strong temptation to mislead. If you think no agreement is possible, and that we may be wasting our time, perhaps we could disclose our thinking to some trustworthy third party, who can then tell us whether there is a zone of potential agreement.” In this way it is possible to behave with full candor about information that is not being disclosed.

Contrary to the accepted wisdom, it is sometimes advantageous to accept an offer to meet on the other side’s turf. It may put them at ease, making them more open to your suggestions. If necessary, it will be easier for you to walk out.

If you find the physical surroundings prejudicial, do not hesitate to say so. You can suggest changing chairs, taking a break, or adjourning to a different location or another time. In every case your job is to identify the problem, be willing to raise it with the other side, and then negotiate better physical circumstances in an objective and principled fashion.

“I appreciate that you are trying to be reasonable, and I still want to know why you think that’s a fair price. What is your principle? I am prepared to pay $80,000 if you can persuade me it’s the fairest price.”

Warnings are much more legitimate than threats and are not vulnerable to counterthreats: “Should we fail to reach agreement, it seems highly probable to me that the news media would insist on publishing the whole sordid story. In a matter of this much public interest, I don’t see how we could legitimately or realistically suppress information. Do you?”

You can also warn the other side about your likely actions in the event of no agreement, so long as you can show how those actions are intended to safeguard your interests, not to coerce or punish the other side.

“Are you threatening me?” Provided your plans are a true warning, you should be able to reply confidently, “Absolutely not. In our shoes, would you recommend a better way to safeguard our interests?”

Perhaps the best response to a threat, however, is to be principled. “We have prepared a sequence of countermoves for each of management’s customary threats. However, we have delayed taking action until we see whether we can agree that making threats is not the most constructive activity we could engage in just now.” Or “I only negotiate on the merits. My reputation is built on not responding to threats.”

Second, talk about their refusal to negotiate. Communicate either directly or through third parties. Don’t attack them for refusing to negotiate, but rather find out their interests in not negotiating.

Are they worried about giving you status by talking to you? Will those who talk with you be criticized for being “soft”? Do they think negotiation will destroy their precarious internal unity? Or do they simply not believe that an agreement is possible?

Finally, insist on using principles. Is this the way they would want you to play? Do they want you to set preconditions as well? Will they want others to refuse to negotiate with them? What are the principles they think should apply to this situation?

Bringing the tactic to their attention works well here. Ask for principled justification of their position until it looks ridiculous even to them.

When you recognize this, call it to their attention and then perhaps take a break while you consider whether and on what basis you want to continue negotiations. This avoids an impulsive reaction while indicating the seriousness of their conduct. And again, insist on principle. When you come back, anyone interested in settlement will be more serious.

In response to a commitment tactic, therefore, you may be able to interrupt the communication. You can so interpret the commitment as to weaken it. “Oh, I see. You told the papers your goal was to settle for $400,000. Well, we all have our aspirations, I guess. Do you want to know what mine are?” Alternatively, you can crack a joke and not take the lock-in seriously.

You can also resist lock-ins on principle: “Fine, Bob, I understand you made that statement publicly. But my practice is never to yield to pressure, only to reason. Now let’s talk about the merits of the problem.” Whatever you do, avoid making the commitment a central question. Deemphasize it so that the other side can more gracefully back down.

Recognize the tactic. Rather than discussing it with the other negotiator, you may want to get his agreement to the principle involved—perhaps in writing—and then if possible speak directly with the “hardhearted partner.”

In addition to making delaying tactics explicit and negotiating about them, consider creating a fading opportunity for the other side. If you represent one company negotiating a merger with another, start talks with a third company, exploring the possibility of merging with them instead. Look for objective conditions that can be used to establish credible deadlines, such as the date on which taxes are due, the annual trustees meeting, the end of the contract, or the end of the legislative session.

As an alternative to explicitly recognizing the “Take it or leave it” tactic and negotiating about it, consider ignoring it at first. Keep talking as if you didn’t hear it, or change the subject, perhaps by introducing other solutions.

If you do bring up the tactic specifically, let them know what they have to lose if no agreement is reached and look for a face-saving way, such as a change in circumstances, for them to get out of the situation.

“good faith.”

Is this an approach I would use in dealing with a good friend or a member of my family? If a full account of what I said and did appeared in the media, would I be embarrassed? In literature, would such conduct be more appropriate for a hero or a villain?