In this article I am providing the second installment of my review of William Ury’s book, Getting Past No: Negotiating in Difficult Situations.  In my previous article, I put the cart before the horse and talked about the five steps to a successful negotiation — here I am going to talk about the horse that pulls the cart: negotiation preparation.

We all operate under severe time constraints, but you can’t afford not to prepare.  So, you have studied the case file and know all your facts and legal arguments.  You feel very smug and are ready to go, right?  Wrong!  Knowing your legal case only equips you to begin negotiation preparation.  It’s like standing at the plate in a baseball game with a brand new bat in your hands.  If you don’t know how to hit, your baseball career is going to be very short.  A minimum of fifteen minutes of preparation time is critical, and a better rule of thumb is to engage in one minute of preparation for every minute of anticipated negotiation time.

Ury states that you must map out the way to an agreement by focusing on five important points: 1) interests; 2) options to satisfy those interests; 3) fair standards for resolving differences; 4) alternatives to negotiation; and 5) proposals for agreement.

1. Interests: Positions are the concrete things you say you want — dollars, terms, conditions, etc.  Interests are the intangible motivations underlying your position — needs, desires, fears, and aspirations. You must identify the interests underlying the positions of you and your opponent.  If you don’t know where you want to go, it’s unlikely that you are going to get there.

Rank and prioritize your interests so that you don’t accidentally give up something very important for something of lesser importance.  Moreover, unless you understand the perspective of the other party, you will have difficulty making a satisfactory deal: you must be able to put yourself into their shoes.  You can’t change their thinking if you don’t understand what it is!  The more you know about them, the better chance you have to successfully influence their behavior.

2. Options: Effective negotiators invent creative options to “expand the pie” and satisfy the “interests” of all parties, even when it’s not possible to obtain everyone’s “positions.”  Never focus on a single solution (often your original position) — brainstorm and invent options without judgment first, and then evaluate them in light of the interests of all the parties.

3. Standards: Once the pie is expanded it needs to be divided up.  Impasse is often created when the process turns into a contest of wills and egos tied to intractable positions.  Come to the negotiating table armed to persuade with fair standards to use as a measuring stick for a mutually satisfying solution that operates independent of the will of either side — examples include market rates, legal criteria, scientific criteria, technical measures, and generally accepted standards and precedents.  Do your homework!

4. Alternatives: The purpose of negotiation is not necessarily to reach an agreement, but to determine whether you can satisfy your interests better through agreement than by pursuing your Best Alternative To a Negotiated Agreement (“BATNA”).  Your BATNA is the key to your negotiating power: the better your alternative to negotiation, the more leverage you have in the process.  Put simply, a BATNA is your best course of action to satisfy your needs without the other side’s agreement.

You need to identify your BATNA, develop and boost it if possible, and use it as a tool to measure any proposal, determine whether to continue negotiations, or whether  to negotiate at all.  Note, however, it is easy to overestimate your BATNA due to your vested interest and personal bias.  Proceed with caution, and, as discussed above, look at the situation as objectively as you can and from the perspective of your opponent.

It is also critical to determine the BATNA of your opponent.  This knowledge will help to guide you through negotiations since you will have a sense of whether any proposals on the table are superior to your opponent’s BATNA.  Having this information allows you to pierce the facade of hard bargaining and posturing.

5.  Proposals: Once you have used this process to identify viable options, you are ready to develop a spectrum of proposals — possible agreements to which you are willing to commit.  Ury suggests developing at least three: one that you aspire to have, one that you would be content to have, and one that you could live with.

The proposal to which you aspire should be realistically high, i.e., the proposal should be within the bounds of fairness and just within your perception of your opponent’s BATNA so that there is at least a chance that they may agree to it.  The proposal with which you would be content should meet your basic interests.  Your third proposal — the one you can live with — should be directly tied to your BATNA: identify an agreement that would barely satisfy your needs only marginally better than your BATNA.  If you can’t obtain an agreement at least as good as your third proposal, you may want to seriously consider walking away from the negotiation table.

These are not rigid positions, but illustrative of the kinds of outcomes that could satisfy your needs.  There is no way to know for sure what the other side will do, and during the course of negotiations you may acquire different information that enables you to develop different options and related proposals.

It is helpful to prepare a worksheet identifying the interests of you and your opponent, the options and standards you have developed, the BATNA of both you and your opponent, and the three categories of proposals you have crafted.  Rehearse the negotiation with a colleague playing the role of your opponent, and elicit feedback regarding what worked and what did not work, and what you might want to try to do differently.  This will help you to anticipate the tactics the other side may try to use and prevent you from being surprised.

Prepare, prepare, prepare…  There is no way to shortcut the process.  But the potential dividends in terms of improving the potential outcome for you and your client are well worth the effort.