In the course of observing lawyers and parties in my mediations and my students in my Negotiations classes, here are some of the more common mistakes that negotiators make:
- No defined, concrete goal. Without knowing what your goal is, you cannot tell whether it has been achieved.
- No commitment to the goal. Once you’ve chosen a realistic/attainable goal, write it down and share it with others so you’re locked into it. The commitment principle will keep you honest. That’s why many diet/exercise books encourage people to publicize what they’re doing. Social pressure is enough to keep them going.
- Aiming too low. Less confident/experienced negotiators don’t push to get all that they can out of a negotiation. For example, say the seller’s BATNA is $100, the seller’s goal should be more than marginally higher than $100. Otherwise, how are they better off by having incurred the transactions costs of a negotiation.
- No concession plan. It is rare that your counterparty gives in immediately. So, plan a few moves ahead and give yourself enough runway to get there. So, if you want $100k to settle your claim, start at $150k and have the steps you’re going to take to get to $100k already mapped out.
- No justification. People expect a reason for the demands you make. So, come up with something plausible. Likewise, your subsequent moves will appear stronger if you justify them. At some point, however, it often turns into a straight negotiation about money untethered to the underlying facts. Until then, explain your moves.
In my mediations, I help the parties avoid these mistakes and achieve a good result for both sides.
Shirish Gupta is an award-winning mediator and arbitrator with JAMS. He is an Adjunct Professor of Law at UC Hastings in San Francisco, where he teaches lawyers, law students and executives how to negotiate.