For starters, just one month ago, I knew nothing about negotiation theory or technique beyond that which I learned from pop culture and my daily life experiences. In truth, the art of negotiating is not something that I spent much time and energy thinking about in the past. That last thought itself is telling. Time and energy. We all have finite amounts of each, and I typically devoted mine to other pursuits. I preferred my negotiations quick and easy. While our personalities play a role in our individual negotiation style, I did not realize how much of an influence culture plays here (Cultural Influence in Negotiations). For me, the quicker and easier the result, the faster I could then move on to something else. I never considered the influence of American culture on my negotiating style. I thought of my negotiation skills as a static, innate ability, rather than a craft or science to be studied and practiced. I viewed a skilled negotiator much like an artist or musician, born with a particular disposition toward a pursuit which, once identified, could be nurtured.
But, just over a month ago, I attended a Continuing Legal Education (CLE) course on negotiations, and discovered the fallacy of my negotiation belief system. Negotiation proficiency, I learned, is more accessible to the masses than I previously imagined. Moreover, Charles B. Craver, the Freda H. Alverson Professor of Law at George Washington University, and lecturer of my “Negotiations” CLE, hit me with the cold-hard truth that my inner child knew more than I did about effective negotiating (Charles B. Craver – GW Law Profile; Charles B. Craver – Expert Negotiator Profile).
In his article, “Everything You Need to Know to be a Great Negotiator You Learned Before Kindergarten,” Professor Craver discusses the “sophisticated theories” of negotiations, ranging from the several basic negotiation styles to the perception of bargaining power and from psychological factors such as gain-loss framing to emotional contagion (Everything You Need To Be A Great Negotiator You Learned Before Kindergarten – Craver, Charles B.). There is plenty of reading material out there on the above-referenced concepts, from Professor Craver and other negotiations experts, so there is no sense in regurgitating them here (Effective Legal Negotiation and Settlement – Craver, Charles B.; The Negotiation Process – Craver, Charles B.; The Five Golden Rules of Negotiation for Lawyers – Latz, Marty; Improving Negotiation Skills: Rules for Master Negotiators – Noble, Thomas). It is enough to say that by learning some of these basic techniques, and practicing them on a routine basis, the uninitiated will experience a measurable increase in meeting their goals in a negotiation.
However, even the most inexperienced and inept negotiator has more negotiation experience than appears at first glance. In his article, Professor Craver posits that “children are intuitively manipulative negotiators” and “most negotiations involve concepts we all learned during our formative years.” The idea is that “with basic needs and limited communication skills,” children are forced to become creative, persistent and acutely aware of the results that various techniques yield. If one were to learn nothing else about negotiating, that last factor may outweigh all others. Simply being aware – actually paying attention to the techniques we use, and the result thereof – will lead us to take stock of what style and techniques work best for each of us.
Being a child is a constant exercise in awareness, creativity and persistence. As we grow into adults, the world grows infinitely larger, and with the many distractions we face, it becomes more difficult to exercise and maintain awareness over our own actions. It takes effort, and effort is combination of time and energy. As adults, our time and energy is extended and diverted in many directions, often preventing awareness and leading us to seek fast and easy results. By slowing things down, focusing on our actions and putting forth the effort, we can achieve the proficiency of a child negotiator.
By this point, you’re probably thinking, “Children are great negotiators, I get it. But, what does any of this have to do with practicing law or seeking a job in the legal profession?” Well, lawyers negotiate every day, in matters big and small. The return on investment of learning, practicing and employing sophisticated negotiating tactics in large-scale, corporate and commercial matters is obvious. On the smaller scale, where less is at stake, there is a lower return on investment, but it can add up over time. Adept negotiators in this smaller scale space may save time – by arriving at a quicker solution; build better relationships – by creating a win-win scenario; and acquire repeat business – by demonstrating consistently effective results on behalf of their clients.
In the legal job marketplace, negotiations involving salary take on additional nuance. The marketplace, for permanent and contract-based roles, is as competitive as ever. In this environment, becoming too aggressive in salary requirements early in the interview process (anchoring too far outside the market rate, or the employer’s budget) may scare the employer off and stop the interview process entirely.
There are several reasons for this: 1) Creating value takes time, by starting the negotiation too far outside employer’s comfort zone, a candidate’s value may not yet be fully established; 2) The employer may perceive that a candidate is actually seeking a more senior role and may begin to have concerns about whether or not that candidate will stick around long in the role for which she was hired before becoming dissatisfied and leaving; and, 3) The employer may feel that despite the altered economic climate and legal marketplace, the candidate has not adjusted to the changing landscape, which is a greater reflection of her adaptability within the company, as it goes through changes in the future. This applies specifically to permanent jobs, where the offer should ideally start off the negotiation process. At that point, a candidate has had the time to build her value, discover more information about the position and build rapport.
Prior to the offer, a candidate’s leverage is much weaker, as presumably there are many other qualified attorneys available for such work who are willing to compromise on pay scale in return for meeting their other goals. Of course, it’s useful to know that the employer’s compensation range is within your expectation range because it may not make sense to continue forward in the process if the discrepancy is too great. In my experience, when the employer has anchored to a number, it’s not often that they’ll exceed that number by more than ten to fifteen percent, and that’s assuming that the employer is enamored with the candidate.
In referring to willingness to compromise in the above paragraph, I do not mean devaluing or undervaluing your skills and experience. In setting your value: 1) Research and become aware of the current market rate for attorney’s with similar experience and skills; 2) Research and become aware of the employer’s current financial state and future outlook; 3) Set a rational, high-end value and a low-end value; 4) Develop a set of non-monetary, or non-salary related benefits and options that have the potential to overcome a salary below expectation. Develop the best alternative terms you are willing to consider, because in this budget-conscious market, employers may be more willing to get creative in the total package of the offer (Best Alternative to a Negotiated Agreement (BATNA) – Spangler, Brad). Since the employer’s budget might be constrained, presenting alternative benefits to create more value in the offer will demonstrate your problem-solving skills, determination to join the company and allow you to carve yourself a piece of the pie with significant value (even if it’s in a different form than you originally sought). Whether it’s building in a signing bonus, performance-based incentives, a flexible work schedule or additional vacation time, there are often ways to work with the employer to increase the value of the offer if it’s below your expectations.
Salary negotiations related to contract-based, or temporary opportunities, often have another set of factors to take into consideration, including whether the position is full-time or part-time, the average weekly hours, location (on-site vs. telecommuting), duration (short-term or long-term), nature of the work (routine and repeatable vs. niche and expertise) and if there is an opportunity for the role to become permanent. All are factors which should be considered in negotiating an hourly, weekly or project-based rate for a contract position. While employers are generally willing to pay a higher rate for contract attorney compared to a permanent attorney, competition for contract roles is fierce, and it’s growing. So, be aware of the competition in negotiating salary for a contract-based role, as that may be a determining factor in the employer’s decision when considering several attorneys for a position.
Perhaps just as important as understanding basic negotiating tactics is avoiding unethical and ineffective methods. Common missteps are one’s that I’ve been guilty of in the past, such as seeking fast and easy results, negotiating via email, failing to gather enough information and failing to build rapport. While our time is limited, building rapport and creating “emotional contagion”, or entering a negotiation in a positive frame of mind, can have a significant impact on the process The Interpersonal Effects of Anger and Happiness on Negotiation Behavior and Outcomes – Van Kleef, De Dreu & Manstead; Google Search Results on Emotional Contagion and Negotiation). It does not mean that we must spend the weekend with the opposing party, but we should strive to seek common ground and show genuine interest in learning a little about the opposing party. This is possible even in a few short minutes.
Failing to gather enough information entering the negotiation is somewhat of an outgrowth of failing to build rapport. Getting the other side talking allows us to pick up on verbal and non-verbal cues that may tip our opponent’s hat (Nonverbal Signals and Negotiation Interactions – Craver, Charles B.). By not taking the time to engage the opposing party in extended conversation, or by not listening, we miss out on a wealth of information that is useful as the negotiation moves forward. Email communications are often a poor means of negotiating for all of the aforementioned reasons. There is no building of rapport, and thus little emotional investment by the other side to move the process along. Also, information gathering via email is very limited, scratching only the surface of the issues at the heart of the negotiation.
From an ethical standpoint, under the Model Rules of Professional Conduct, Rule 4.1 addresses “Truthfulness in Statements to Others” (ABA: Model Rules of Professional Conduct – Rule 4.1). Rule 4.1 states that “in the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person.” Comment 2 on Rule 4.1 goes on to clarify that “under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact” (ABA: Model Rules of Professional Conduct – Comment on Rule 4.1). What this means is that overstating or understating value is non-material for negotiating purposes. So, in negotiating salary, when a job offer is on the table with a potential employer, the Model Rules say that it’s okay to overstate the value of a competing job offer, in order to create leverage. However, the Model Rules suggest that it is unethical to fabricate a competing job offer for the purposes of creating leverage in the negotiation.
Previously, I viewed negotiation tactics as those employed by people with pushy, overbearing personality types, which produced marginal results, at best. At worst, I felt that negotiation tactics impeded open, honest dialogue and actual progress. Since attending Professor Craver’s course, reading several articles about negotiations, and simply practicing some of these techniques and awareness of my efforts, I’ve started achieving more of the goals that I’ve outlined in advance of my negotiations.
In turn, my mind-set has shifted to where I see infinite value in honing my negotiation skills. By focusing on emotional contagion, creating win-win situations, treating the negotiation process as more than a “fixed-pie interaction,” anchoring early on in the negotiation process and being more attentive during the information stage, I’ve noticed the impact that small shifts in behavior have in the negotiation process (Negotiator Styles in Bargaining – Craver, Charles B.). More importantly, simply practicing the awareness of my child-self, focusing on basic goals and using creative approaches, has allowed me to rediscover my inner child negotiator.