Have you ever found yourself negotiating with a brick wall? Maybe not a wall, but an opponent, coworker, spouse or five-year old so entrenched in her position that it seems to take a herculean effort to procure even the slightest movement?

I’ve previously quoted from the slim but powerful text about negotiation strategy, Getting To Yes. One of the authors of that landmark, William Ury, subsequently wrote Getting Past No: Negotiating With Difficult People. I don’t know about you, but anyone who doesn’t go along with my program is clearly difficult.

Ury developed a five-step strategy for making progress with these . . . er . . . difficult people. The first step is to take your own emotions out of the equation; this will help prevent you from reacting without thinking, which can immediately stall or even end productive negotiations. Ury calls this Going to the Balcony. He describes it thusly:

“When you find yourself facing a difficult negotiation, you need to step back, collect your wits, and see the situation objectively. Imagine you are negotiating on a stage and then imagine yourself climbing onto a balcony overlooking the stage. The ‘balcony’ is a metaphor for a mental attitude made of detachment. From the balcony you can calmly evaluate the conflict, almost as if you were a third-party. You can think constructively for both sides and look for a mutually satisfactory way to resolve the problem.” (Getting Past No (Bantam 1991), p.17.)

Step two is to Disarm Your Opponent. Here, I picture Jason Bourne using some slick Krav Maga move to take and use his opponent’s own weapon against him. Sadly, Ury’s tactic is not so sexy. But it’s easier. The goal is to step to your opponent’s side. This requires active listening, which gives your opponent an opportunity to articulate her position, then paraphrasing it back to her. Ury writes, “It is not enough for you to listen . . . [h]e needs to know that you’ve heard what he has said.” (Id. at 39.) Once you both agree that you understand your opponent’s position, the second part of this step is to create a favorable climate for negotiation. This can result from one or a combination of efforts, which can include  acknowledging our opponent’s feelings and agreeing wherever you can, which can help you “accumulate yeses.” Ury summarizes this step as follows:

“[T]he hurdles you face are your opponent’s suspicion and hostility, his closed ears, and his lack of respect. Your best strategy is to step to his side. It is harder to be hostile toward someone who hears you out and acknowledges what you say and how you feel. It is easier to listen to someone who has listened to you. And respect breeds respect.” (Id. at 54.)

Ury’s third step is to reframe the dispute. “Reframing means recasting what your opponent says in a form that directs attention back to the problem of satisfying both sides’ interests. . . You act as he were trying to solve the problem, and thus draw him into the new game.” (Id. at 61.) This is tough to explain without an example; fortunately Ury provides one. He cites the 1979 SALT II arms talks with Soviet leadership. The US sent a very junior senator, Joe Biden, Jr., to Moscow to negotiate with (read: against) Soviet Foreign Minister Andrei Gromyko. Regardless how you feel about Joe Biden today, he certainly held his own on this early mission.

Gromyko quickly articulated the Soviet’s unequivocal nyet (no) to the US proposal. When it came time for Biden’s turn, here’s what happened:

“Instead of arguing with Gromyko and taking a counterposition, he slowly and gravely said, ‘Mr. Gromyko, you make a very persuasive case. I agree with much of what you’ve said. When I go back to my colleagues in the Senate, however, and report what you’ve just told me, some of them–like Senator Goldwater or Senator Helms–will not be persuaded, and I’m afraid their concerns will carry weight with others.’ Biden went on to explain their worries. ‘You have more experience in these arms-control matters than anyone else alive. How would you advise me to respond to my colleagues’ concerns?’

Gromyko could not resist the temptation to offer advice to the inexperienced young American. He started coaching him on what he should tell the skeptical senators. One by one, Biden raised the arguments that would need to be dealt with, and Gromyko grappled with each of them. In the end, appreciating perhaps for the first time how the amendment would help win wavering votes, Gromyko reversed himself and gave his consent.” (Id. at 61-62.)

See what Biden did? “He reframed the conversation as a constructive discussion about how to meet the senators’ concerns and win ratification of the treaty.” (Id. at 62.) When trying to reframe, Ury suggests posing questions to your opponent. Ask why, why not, what if, and, as Biden demonstrates, how would you do it. This turns your opponent into a collaborator.

Step 4 of Ury’s strategy is to make it easy for your opponent to say yes. He calls this building them “a golden bridge.”  This strikes me as connected in a fundamental way with Ury’s third step, reframing the issue. When Biden solicited Gromyko’s advice, he was, in effect, building him a golden bridge to see the issue from Biden’s (and, therefore, the US) perspective and cross the golden bridge by reversing his entrenched position.

According to Ury, what’s important is to resist the temptation to tell your opponent anything. Telling, aka “pushing may actually make it more difficult for your counterpart to agree. It underscores the fact that the proposal is your idea, not his.” (Id. at 90.) If you can persuade your opponent–overtly or covertly–that your proposal or goal is actually her idea, this builds a golden bridge making it very easy for her to adopt your position. Ury makes several suggestions, including helping your opponent save face, offering her choices and help writing her victory speech back to her superiors or contingent.

Step 5 is when you crush your opponent–bring her to her knees, right? Actually, no. In the final step of Ury’s strategy, while you make it hard for them to say no, this is done by bringing them to their senses, not their knees. Unlike the “power game” which we might instinctively resort to, which involves making threats if your opponent doesn’t agree to your terms, Ury urges instead that we think in terms of educating your opponent of what the alternative is if an agreement is not reached. Again, the better way to educate is not by telling your opponent what you’re going to do, or telling her what will happen, but instead to ask reality-testing questions. Here are three reality-testing questions Ury likes:

1. “What do you think will happen if we don’t agree?”
2. “What do you think I will do?”
3. “What will you do?”

Ury acknowledges that this won’t always work. He reminds us of one of the most important concepts from Getting To Yes, formulating your own Best Alternative To A Negotiated Agreement (BATNA). Before you resort to actually implementing your BATNA, Ury suggests “you should let your opponent know what you intend to do. You want to give him a chance to reconsider his refusal to negotiate.” (Id. at 117.)

The book obviously covers these strategies better and in greater detail. I recommend Getting Past No to anyone who spends a good part of her career–or life–negotiating with difficult people. Then again, don’t we all?

One of my favorite books about negotiation is Getting To Yes by Roger Fisher and William Ury. As the book jacket suggests, it really is “for everyone who has ever worried about what to do in a disagreement or dispute.”

Since I suspect that the majority–if not the vast majority–of negotiations are between parties of unequal bargaining power, I thought it might be interesting to dip into the book and see what Fisher and Ury recommend one do when he/she/it is negotiating against a more powerful opponent. One of the tools the authors advocate in this situation is for a negotiating party to formulate a Best Alternative To A Negotiated Agreement (BATNA). Just by knowing their BATNA a party becomes empowered in any negotiation.

The easiest way to get a feel for what the authors are talking about is by using their example:

“Consider a wealthy tourist who wants to buy a small brass pot for a modest price from a vendor at the Bombay railroad station. The vendor may be poor, but he is likely to know the market. If he does not sell the pot to this tourist, he can sell it to another. From his experience he can estimate when and for how much he could sell it to someone else. The tourist may be wealthy and ‘powerful,’ but in this negotiation he will be weak indeed unless he knows approximately how much it would cost and how difficult it would be to find a comparable pot elsewhere. He is almost certain either to miss his chance to buy such a pot or to pay too high a price. The tourist’s wealth in no way strengthens his negotiating power. If apparent, it weakens his ability to buy the pot at a low price. In order to convert that wealth into negotiating power, the tourist would have to apply it to learn about the price at which he could buy an equally or more attractive brass pot somewhere else.” (Id. at 107.)

Since I’ve visited the Bombay railroad station–it’s actually called the Victoria Terminus–this was an easy bargaining situation to picture. The authors just left out the part about the cows wandering along the platform. In any event, as they point out, “the relative negotiating power of two parties depends primarily upon how attractive to each is the option of not reaching agreement.” (Id. at 106.) If you can have a very attractive BATNA, your chips have greater value.

How do you strengthen your BATNA? The authors suggest this “requires three distinct operations: (1) inventing a list of actions you might conceivably take if no agreement is reached; (2) improving some of the more promising ideas and converting them into practical options; and (3) selecting, tentatively, the one option that seems best.” (Id. at 108.)

If we transition this discussion into a familiar setting, the pre-suit mediation of a hypothetical employment dispute, it may become easier to see how the whole BATNA thing might play an important role. Consider, for example, a single plaintiff who has a claim against her employer for gender discrimination. The parties engage in a mediation to see if the case can be resolved before she actually files a lawsuit. The individual employee might be anxious going into the mediation, since her employer is a large corporation with sophisticated lawyers at its disposal (at least they look sophisticated) and both she and her lawyer know it will cost a lot and be an uphill battle to pursue the case if the corporation is not inclined to settle. This sounds like an unequal bargaining position, doesn’t it? If they go in “cold” as it were, hinging their hopes on the corporation’s generosity, they’re likely to get steamrolled into agreeing to a settlement far below full value.

What can they do to enhance their BATNA and take away some of the corporate defendant’s power? Let’s apply the 3 step approach from Getting To Yes. First, the plaintiff and her lawyer “invent a list of actions” they might take if the dispute doesn’t resolve at mediation.  Here are some I invented for them:

• Go ahead and file a lawsuit and serve aggressive discovery. (True, it’s not very original.)
• Explore pursuing a class action instead of a single plaintiff case.
• Aggressively investigate whether there are quality witnesses who will support plaintiff’s case.
• Propose a second mediation session after the plaintiff has completed some (hopefully damaging) discovery.
• Associate additional reputable counsel to help level the playing field.
• Explore forum shopping options. Perhaps the corporation expects a lawsuit would be subject to mandatory arbitration, but the facts or current state of the law weakens the assumption that arbitration will be a suitable forum?

Step 2: “improving some of the more promising ideas and converting them into practical options.” I like the idea of a class action as a practical alternative option to a single plaintiff case. This is bound to put pressure on the corporation, as a class action carries both greater risk and greater expense. How to “improve” this idea? Do some investigation. Talk to plaintiff’s female colleagues. Even if their cases would not be particularly strong if pursued individually, they might have a chance in a class action situation.

Step 3: selecting which option seems best. Let’s assume there is some chance the plaintiff and her lawyer could organize and successfully pursue a class action (but would still prefer to settle her single plaintiff case at mediation), the question becomes whether to share your option with the opponent during the bargaining process. The authors say this:

“The desirability of disclosing your BATNA to the other side depends upon your assessment of the other side’s thinking. If your BATNA is extremely attractive–if you have another customer waiting in the next room–it is in your interest to let the other side know. . . However if your best alternative to a negotiated agreement is worse for you than they think, disclosing it will weaken rather than strengthen your hand.” (Id. at 109.)

Here you will need to make an honest assessment. Is the notion of converting the plaintiff’s case into a class action really just pie-in-the-sky? The corporation’s lawyers are naturally going to wonder, if the plaintiff reveals her class action alternative, why her lawyer isn’t pursuing that in the first place if there’s really a viable class. The corporation, knowing class certification can be a challenge which, if lost, tends to shake out meritless individual claims, might not be particularly cowed by the prospective of a weak class action.

On balance, I would probably not reveal this BATNA to the opposition, even if the plaintiff and her lawyer believe a class action is a viable alternative. What’s important is the actual balance of power, not just the corporation’s perception of the balance of power. Going into the mediation with the knowledge that she has a decent BATNA should give the plaintiff and her lawyer the resolve not to cave too easily.