How "No" Leads to "Yes"; Seven Negotiation Tactics for a Successful Mediation

Cornell Law defines negotiation as “a give-and-take discussion that attempts to reach an agreement or settle a dispute.” Negotiation does include some compromise, but specific negotiation tactics can help gain the upper hand.

It’s critical to understand negotiation techniques in order to negotiate quickly and successfully. Not only can you strengthen your negotiation style, but you will be better prepared for negotiation tactics from the opposite party.

Read on for seven negotiation techniques to practice and prepare for in your negotiations.

1. Build Rapport

Building rapport is an essential part of negotiation as it opens the door for building trust, asking questions, and gathering information.

In his book, “Never Split the Difference: Negotiating as if Your Life Depended On It,” Chris Voss says, “If we’re too much in a hurry, people can feel as if they’re not being heard. You risk undermining the rapport and trust you’ve built. Put a smile on your face. When people are in a positive frame of mind, they think more quickly and are more likely to collaborate, and problem solve.”

Similarly, coach and author Tony Robbins says rapport is the “ultimate tool” for producing results. Building rapport means finding common ground, being empathetic and creating shared experiences.

In an article for Marquette Law Review by Janic Nadler, she cites studies showing how visual access before decision making improves rapport which encourages cooperation. A particular emphasis is on face-to-face contact due to the impact of nonverbal communication. When visual access and relationships are limited, she recommends a “get to know you” conversation and engaging in small talk when possible. Studies show significant improvements to outcomes when rapport is built.

2. Don’t Be Afraid of “No”

Negotiation is a give and take, but there is still a place for “no.” As William Ury discusses in his book “The Power of A Positive No,” you should be saying no firmly, clearly, and respectfully as part of your negotiations.

“No” isn’t necessarily negative. “No” allows you to put boundaries in place and set expectations, if used properly. Knowing each sides’ boundaries in a negotiation helps narrow down possible solutions. Managing expectations during a negotiation avoids disappointment. When people know what to expect, they become less aggressive or feel less slighted when certain terms can’t be met. Aggression, disappointment and impressions of betrayal are all hindrances to reaching a successful resolution.

Don’t be afraid to say “No” when appropriate in a clear and respectful way. When used properly, “No” can actually get you to “Yes” more quickly.

3. Break it Down

Breaking down the large issue(s) into small parts can help to find common ground and make progress a little at a time. Focusing on issues one by one also avoids the “all or nothing” mindset which can be detrimental to a successful negotiation.

In sales, this idea is similar to the tactic of “nibbling.” Instead of trying to close the deal all at once, the salesperson focuses on getting small agreements until they’ve reached their goal. In legal negotiation, breaking the negotiation into parts is a way to agree little by little until the entire negotiation is complete. Using this technique in conjunction with “Focusing on Interests”, discussed further below, is a staple of moving mediations towards a resolution, particularly in highly contentious or very complex disputes.

4. Get Information

Information is power. The more information you can gather, the more likely you will have the upper hand. Keep in mind gathering information doesn’t start when the negotiation begins. Instead, you might be collecting the essential information during the negotiation process. If you’ve built relationships with the opposite party, gathering information will be easier, proving the importance of building rapport.

Gathering information starts with knowing your party’s stance and as many of the details as possible. From there, you’ll want to collect relevant data and background information related to the case. In addition to this, you’ll need to be clear on the plan and goals your client has.

When it comes to the opposite party, the information you should gather includes relevant data, background information, and the team’s hierarchy (think - who is empowered to make decisions in the negotiation?). In litigation, this information is obtained through discovery, which emphasizes the importance of knowing when a case is “ripe” or ready to mediate, or, in the alternative, be strategic in what discovery you prioritize leading up to mediation.

5. Resist Aggression or Manipulation

Negotiations can get tense and you may be working with a party that uses aggressive or manipulative behaviors. Instead of following suit, resist this behavior and rather stay level-headed and goal-oriented. Recognize these aggressive or manipulative behaviors and continue negotiations.

When faced with aggressive or manipulative behavior, I often refer to an idea by William Ury, “Maybe the greatest power we have in negotiation is the power *not* to react.” While aggressive techniques may work in the short term, they can have a significant long-term negative impact, such as derailing relationships. Focus on responding, not reacting. When you respond, you are well-thought out in what you say, how you say it. When you react, you allow your emotions to determine how and what you say. In my experience, the party who gives in to their emotions and reacts, instead of responding, effectively gives up all control in the negotiations and sends the message that they can be manipulated.

6. Separate People From Problem

Without separating people from the problem, negotiations can become complicated by relationships, good or bad. Ury says in his book, “Anything one negotiator says about the problem seems to be directed personally at the other and is received that way. Each side tends to become defensive and reactive and to ignore the other side’s legitimate interests altogether.” Consider this when deciding how to present opening remarks in a joint caucus. Is there a benefit to making the issues in a case personal? Or, do I need to prevent the opposing party from putting their guard up by using more generalized statements and avoiding comments that appear to place “blame”?

It can be challenging to separate the two, so changing perspective can help. It’s easier to look for a person to blame, but change your mindset from “us against each other” to “us against the problem.”

7. Focus on Interests

In the Harvard Negotiation Briefings newsletter, editor Katie Shonk says, “Negotiators often waste time arguing over who should get their way or alternatively, trying to find a compromise point in between the two firm positions they have staked. In principled negotiation, negotiators look beyond such hard-and-fast positions to try to identify underlying interests - their basic needs, wants, and motivations.”

Understanding the opposite parties' interests gives more context to their demand and helps to break down barriers to successful negotiation.

Negotiate with Confidence

This isn’t an exhaustive list of negotiation tactics but these are some of the most essential to a quick and successful negotiation. Remember to start with preparation and research. Having all relevant information is vital, and knowing your goals helps with the direction of negotiations. Instead of focusing on winning, it can help to focus on breaking down the barriers, building rapport, and getting to know the context behind demands in negotiations.

Do you have a case for mediation? Are you looking for a strong mediator who works to effectively negotiate disagreements in an effort to find solutions that reach a favorable settlement for both parties involved? As your mediator, you get the benefit of my litigation experience to facilitate a productive, effective mediation for your clients. Click here to schedule your next mediation.