Failing to Prepare = Preparing to Fail

Are you sabotaging your negotiation before it starts?

Photo by Colin Lloyd on Unsplash

“Luck is what happens when preparation meets opportunity.”

— Seneca

Several years ago, I mediated a lawsuit with an attorney who began our joint negotiation session by explaining his client’s injury. A young guy had hurt himself at work and brought a claim against his employer. Both parties, their counsel and I (the neutral party) sat around a conference table to review the case’s key issues.

“Yes, well, he injured his right eye during the accident,” the worker’s attorney noted.

“It’s actually the left eye,” his client interjected.

“Left eye, I’m sorry,” continued the attorney. “My client’s vision in his left eye was affected by the accident, though it has been improving over several months.”

“Hang on, no. No! Did you even review my case?” the worker scolded his counsel. “I can’t see anything out of this eye, and it’s worse each day. I went to the doctor two weeks ago and he says I’m legally blind and might need a prosthetic!”

Uh-oh. Sounds like a couple of people need to have a private chat.

And so we began.

Preparation, preparation, preparation.

By the way, this scene actually happened. Remember, the lawyer was a professional being paid handsomely to represent his client’s interests. This was a serious matter, with a man’s vision, livelihood, and money at stake.

And the attorney obviously showed up to negotiate woefully unprepared.

Talk About Poor Preparation!

One of my very favorite negotiation stories comes from yet another case I handled as a mediator years ago.

We had scheduled an in-person mediation to begin at 11 a.m. Just before 11:00, I went to the bustling office lobby to greet the parties. After some brief chit-chat, I escorted the defendant, with his counsel, into a conference room.

Shortly thereafter, back in the lobby, I recognized the disheveled plaintiff’s attorney, who appeared around 11:15. I greeted him, too. He habitually ran late, I knew from past experience, and he had a reputation for being under-prepared, to put it kindly.

“Where’s your client?” I asked, curiously.

“I don’t know,” said the lawyer, perplexed, as he adjusted his glasses. “We talked on the phone yesterday, and she was supposed to be here. Let’s give her a few more minutes.”

I left the attorney and spoke with the defense team in their conference room. I explained that the plaintiff was apparently still on her way, and that we’d begin the mediation when everyone had arrived.

Well, a few more minutes became ten, then fifteen, and soon twenty. So I returned to the waiting room to check in with our client-less attorney.

“Have you tried calling her cell phone?” I asked patiently. Surely he had called by now.

“No, but that’s what I was going to do next,” he explained.

Again, this is a paid professional. How he stays in business, much less functions in the everyday world, I have no idea.

“Well, let’s go ahead and do that now, please. The other side is waiting and we really should get started as soon as possible.”

So the attorney called his office, retrieved his client’s cell phone number (how did he not have that handy?), and dialed. Finally, we’re getting somewhere.

After a few seconds, to our surprise, a faint ring tone sounded in the corner of the lobby waiting room. A brief pause preceded another ring, and then a woman, seated in a lounge chair and watching the overhead TV, answered the phone.

Meanwhile . . . . “Can I speak to Ms. Smith, please?” the attorney said into his phone.

“I’m at court for a mediation. Can I call you back? Who is this?” said the woman in the waiting room chair.

“Oh, she’s actually . . . ” started the attorney, slightly flushed and turning towards me. The poor guy clicked off his phone and forced a sheepish grin.

“I know, I heard. But let me guess. Your client’s already here, right?” I inquired of the attorney, with a slow blink, and then walked over to greet Ms. Smith.

Talk about failing to prepare. This guy hadn’t even met his client, even as they sat across from each other awaiting one of the biggest negotiations of this woman’s life.

The Best Negotiator is the Prepared Negotiator

Before entering a negotiation, it’s critical to prepare. We all know this, based on experience, instinct, or both. But why do we need to prepare?

“By failing to prepare, you are preparing to fail.”

— Benjamin Franklin

Here are a few good reasons to prepare before negotiating:

• The best negotiators are the best prepared. No need to bury the lede, so let’s just say it. As soon negotiations begin, as a neutral I can tell which attorneys are prepared and which failed to do their homework. At minimum, the prepared attorney will have reviewed with his or her client and have easy access to case facts and law, issues in dispute, relevant documentation and other evidence, and case evaluation based on expected outcomes and associated expenses. In that way, the attorney is able to assess a case’s reasonable monetary range and attempt to persuade the opposing side (and the mediator) as to settlement value. Negotiation preparation can take many forms in our personal lives, too. Suppose you need to call a retailer’s customer service line to negotiate the return of an item. Consider how your conversation goes depending on whether the attendant: (1) has your entire file in front of them and has reviewed the history of your transaction before starting the conversation; or (2) has no idea what you’re talking about and begins by asking you a rote list of background questions you’ve already answered 4 times.

• The best negotiators prepare beyond the minimum. What else do they do? With forethought and preliminary research on the front end, top negotiators are able to empathize with the opposition and use that empathy as a strategic tool. Being empathetic allows a party to stand in the proverbial shoes of the other side and gain a better understanding of what motivates the opposing party. And genuine empathy takes preparation. What is most important to my counterpart? What have they done in previous situations like this, and why? What are they really trying to achieve on the other side of this conversation?

• Seeking to understand their counterparts’ motivations, the empathetic negotiator can speak directly to the other side’s primary needs, concerns, and goals. Uncovering motivations of the contrary party can help a negotiator frame and offer proposals in a most efficient and favorable way, one that is most likely to be met with agreement. Based on the information you’ve gathered, what do you have, or what can you provide, that the other side might want?

• Have a firm grip on your options and, critically, on those of your counterpart. In the legal context, negotiation makes sense for both parties only if they feel they can do better by settling a dispute than by seeking a judicial resolution. Therefore, making wise decisions at mediation — as in any negotiation, really — hinges upon your ability to assess the players’ alternative courses of action and likely outcomes. Sometimes, you might need to persuade the other side by helping them see their other options more clearly; if those are less favorable than what you can offer, you should be able to present your solution as the preferable alternative. Of course, thorough preparation helps you do all of this more effectively.

• The more prepared negotiators are the more confident, and the more confident, the more often persuasive. Knowing the facts and law underlying your dispute, along with the best and worst non-agreement alternatives for each side, allows you to negotiate with elevated confidence.

So preparation breeds confidence, which tends to increase the capacity to persuade. Preparation helps you understand your options and gives you insight into how to influence your counterpart’s actions. And all of that means you maximize your chances of getting what you need from the negotiation process.

After the Why, Here’s the How

If you are a lawyer about to enter settlement negotiations on a case, you need to know your case facts and the law applicable to those facts. Preparation of this sort will allow you, in turn, to assess a range of possible outcomes were the case to go to trial, and those possible outcomes will help you formulate a reasonable range of settlement values.

Similarly, if you’re going to buy a car, advance research will help you understand reasonable price ranges for the array of options you might encounter at the dealership or shopping online. Before engaging in negotiation, you should know which other dealers sell the car you want, or something similar, and which other vehicles might offer the features you need.

Ask yourself: If I don’t reach an agreement/sign this deal/settle this lawsuit, what do the alternatives look like? What are the most likely best and worst outcomes if we walk away?

That is, by calculating and evaluating your “BATNA” and “WATNA” (best and worst alternatives to a negotiated agreement), you can prepare a sound negotiation strategy and enter the bargaining process armed with information and rational goals.

Adequate, detailed preparation will vary by context, but these key points will help you wherever you are:

• Do your research. Before entering that car dealership, perform your due diligence thoroughly. Know all about your target vehicle’s features, options, and price range. As you prepare to negotiate a salary increase, understand well the market for those offering similar services. If you’re preparing to buy or sell a house, there’s no excuse these days, with all of the information at our fingertips, not to examine comps in the house’s area and other relevant background details.

• Anticipate the other side. Consider how you’d approach the discussion if you were on the opposing team. Why? You want to get in their heads so you’re prepared to present counter-arguments, of course. In addition, considering the other side will help you empathize and appreciate the motivating factors that must shape your strategy.

• Rehearse. As you lead up to a negotiation, practice what you’ll say and how you’ll say it. The more confident you are in your presentation, the more persuasive you’ll be. Apart from your substantive points, presenting with confidence engages the other side and gives you an extra air of persuasiveness.

• Prepare to manage your emotional responses. Managing, regulating, and channeling emotion is a principal theme familiar to any student of Stoicism. And that theme is common among skilled negotiators and dispute-resolvers, too. Negotiation can stir up emotion reactions, and rarely do negotiators make their best decisions when off balance. Anticipate and acknowledge the emotions driving a disagreement. Channel your emotions, to the extent you can, in a way that allows you sufficient space and calm to make rational decisions. Even though you can’t expect to control a counterpart’s high emotions, you can still help by managing your own responses and at least not fanning the flames on the other side.

• Keep your mind open. Even when you have a difficult argument to make, try to enter the discussion and then remain open-minded. This takes a great deal of discipline, and coming in mentally prepared can help you understand the other side’s interests and positions. At the very least, commit to listening sincerely to what they have to say. That way, you might even learn something that could change your mind. What if you’re actually mistaken about a fact or have been lead to a faulty conclusion? Then, if the other side has a good point, acknowledge it. You’ll gain credibility with them and, in turn, give the other side permission and incentive to listen to your contentions.