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The Best Way To Negotiate a Contract According to a Chicago Small Business Attorney

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Shakfeh Law LLC Blog

As a Chicago small business attorney, negotiating skills are paramount to my practice. If you listen to or read work by negotiation thought leaders, you will find, like in any field, differences of opinion. Two of the most well-known books about negotiation are Getting to Yes: Negotiating Agreement Without Giving In and The Mind and Heart of the Negotiator. If you read about negotiation, you will learn about establishing your BATNA (best alternative to negotiated agreement) before coming to the table.

These negotiating books have a lot of good principles, but a book I recently read, Never Split the Difference by Chris Voss, gives a whole new perspective: specifically, that traditional notions of negotiation are rooted in the flawed belief that people negotiate in logical terms. In other words, traditional strategies advise their readers to negotiate using logical thought processes. Concepts such as focusing on the issue and compromising are examples of logical-based strategies. In Getting to Yes, proposed principles include 'separate the people from the problem' and to 'insist on using objective criteria.' In addition, people traditionally consider it an acceptable compromise to arbitrarily meet half way or 'split the difference.'

Chris Voss, a former FBI negotiator, however, has a different take. In his job as a hostage negotiator, Voss could not afford to 'split the difference' because this would mean a death of hostages. In his book he also argues that traditional methods mentioned above simply do not work and that negotiation is very much an emotional exercise. This means that you can not 'separate the people from the problem' nor can you insist on using objective criteria.

Rather, Voss employs 'tactical empathy' to get a sense of the other party's emotional thinking, basic needs, and then using that information to influence the other side. In my experience, as humans, we make a lot of assumptions about other people and their needs. But by using tactical empathy and research about the other side, whether through subtle questioning or objective research, we learn that we are often incorrect about the other side's perspective. In my experience a business litigation attorney, for example, my clients often assume that the other side would rather settle a case if it costs them less than to continue to pay legal fees. In my experience, however, that is absolutely not the case. In my experience, people are far more more emotional than we think and will pay their lawyers more than what a settlement is worth to save face or just to win.

Voss also discusses a strategy that you will probably not read about in other negotiating books is your voice inflection, depending on your context and situation A downward inflection, for example, can still be assertive but without sounding aggressive. Often, you can literally say the same words but inflecting in different areas of your sentence and get different responses from the other side. Of course Voss can explain it better than I can in this video.

Another great tip is asking direct questions. Often, we beat around the bush in trying to get information we need to negotiate. Often, we don't want to look silly or uninformed. Voss argues that we should just be frank and ask questions. For example, in a salary negotiation, an employee, before asking for a salary, should directly ask what value he can bring or what the employer is expecting in order to justify a salary. An employer directly this information is likely more prepared in his argument to justify a raise.

As both a business dispute lawyer and a contract review lawyer, I find various negotiating tactics very helpful. In the Mind and Heart of a Negotiator, the author states that negotiation is 80% preparation and 20% active negotiating at the table. I used to think this was absolutely true as I would prepare by BATNA but struggled at the actual negotiating table. After years of practice and reading Voss' book, I have found myself stronger at the negotiating table and much of my preparation is not just research of objective facts, but preparing a strategy of tools of tactical empathy to use at the table.

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