Ahead of his webinar on negotiating on 13 October, offered at a 20% discount to Civil Litigation Section members, leading commercial mediator Andrew Hildebrand gives his top tips on getting the best from meetings for both you and your client.
1. Start at the end and work backwards. Find out what your client wants. Not what they say they want. Are they looking to cut a deal, build a relationship or prevent a dispute?
Get them to step back, look at the big picture and decide what’s best for them and their business.
2. Investigate and road-test options. Make sure your client knows which one is most likely to help them achieve their objective and that they understand the likely financial, legal and personal implications. If necessary, consider any lost opportunity costs, contingency plans or short-term solutions.
3. Decide on a game plan. Again, get your client to focus on their end game and work backwards, prioritising what they have to get from the meeting, what they’d like to get from the meeting, and what they would be prepared to trade.
Then, get them to put themselves in the other side’s shoes and do the same. What’s the other side’s game plan likely to be?
Think about the tactics on the day. Better still, do a trial run, and think about where any impasse is likely, because that’s when the negotiating really begins. If anyone says ‘no’, how can your client get them to say ‘yes’? What additional information might they need? What about any hidden constraints – for example, unidentified stakeholders who have to be satisfied, or concealed interests someone is trying to serve?
4. Think about the dynamics. Getting what you want out of a meeting also means understanding the people involved. What is going to make the other side more likely to respond favourably? Who is most likely to sway them? What should they say and how they should say it? Get your client to prepare what they want to say at the meeting. It will help them to keep their eyes on the prize and feel in control.
5. Could hiring a facilitator make the meeting more successful? You’ve thought about the people; now, what about the process? Consider using someone independent to manage the process and unblock impasses, especially if discussions might be awkward or sensitive. It can also be invaluable for discussions inside a client’s business, eg with partners, shareholders and employees.
A good facilitator keeps people focused on what they want to achieve – and away from whatever is separating them.
6. Arrangements: where’s best to meet and who should / shouldn’t be there?
Check that people will devote sufficient time for the necessary conversations to take place, that they have the requisite authority, and that they won’t be distracted.
7. Make it a dialogue. Listen: don’t let your client rush into the deal terms. Instead, start by asking the other side what they want. Make sure they feel heard. Resist the urge to debate any point until you are sure. As any mediator knows, building that trust at the outset is key to settling a dispute: the same applies here.
Listen to understand. Keep an open mind and listen too for what’s not being said. Use what you learn to frame your negotiations.
Speak: get your client to state clearly what they want and reiterate what people have in common. Identify obstacles that jointly need to be overcome. Generate and explore options.
Make sure the other side also know what they have to lose personally, reputationally and financially.
Maintain momentum: if a point isn’t settled, park it and move on. When people see a deal in sight, minor points will fall away and shifting positions won’t mean losing face. Don’t get hung up on wording either. Agree something ‘in principle’ and keep going, especially if you are concerned that the wording might be contentious. That may feel counter-intuitive, but you can revisit it when it comes to the drafting.
8. Be careful about tone and body language. Remember, only 5% of communication comes from the spoken word.
9. Bite your tongue. Remember how powerful not reacting can be. Avoid being confrontational. It makes people more defensive, not more collaborative.
Don’t be defensive. Be calm and open. You don’t have to agree with what someone says, but empathising can make a real difference – as can asking the other side for their suggestions and considering them constructively.
10. Get it signed there and then. Deals have a nasty way of unspooling if you don’t.
Andrew Hildebrand is presenting a webinar entitled ‘How to negotiate successfully’ on 13 October. Civil Litigation Section members are entitled to a 20% discount off the booking price.