Some pro tips for the negotiating table

By Austyn Boothe and Daniel Sheikhan   

Winning the ABA Negotiation Competition, as you might imagine, did not come easily. It involved hundreds of hours of preparation, consultations, scenario drafting, and oral arguments, and the 13 single and multi-party negotiations with domestic and foreign legal representatives were as challenging as they sound.

The competition consists of simulated legal negotiations in which law students, acting as lawyers, receive common and confidential facts related to a series of legal problems. The competitors are judged on their ability to work with the other side and reach a deal that meets their clients’ goals and interests. Only the top team of law students from each country advances to the week-long International Negotiation Competition, where law students from around the world represent parties in negotiations regarding international business transactions and disputes. 

Throughout the nearly year-long competition cycle, we developed a variety of skills that helped us earn the title of world champions; the following skills have greatly informed our work and the way we navigate real-world legal situations.

Ask why

One of the simplest and most effective negotiation tactics is a one-word question that all of us grew up uttering: Why? Asking it will help you better understand the underlying motives of the parties. 

During our competition rounds, we found that many parties were so focused on attaining what was written in their confidential packets that they forgot to consider the reasons they were sitting at the table. During a personal injury settlement, while representing a school board, we were in discussions with the parents of a child who was injured on the football field. The parents’ lawyers were adamant that their clients wanted specific language in the revised concussion safety protocols. Understanding that a school board was not intending to rely solely on what one child’s parents wanted, we asked why the parents wanted those changes. Their response taught us that they wanted to ensure their experience would not be repeated by other families whose children also played contact sports. They wanted to feel heard by the school board. Understanding this reasoning, we offered the parents a more active role in the school board’s safety committee. This was something that went over very well with the attorneys and earned us great bargaining power when discussing monetary settlement figures. 

During our competition rounds, we found that many parties were so focused on attaining what was written in their confidential packets that they forgot to consider the reasons they were sitting at the table.

Not only was this line of questioning beneficial during every single round of our negotiations, but it proves extremely fruitful in real-world practice. Understanding why someone is making a demand can often force them to think about their own goals and interests and offer them to you in a more concrete way. Often a party will be able to tell you exactly what the root of their desire is, allowing you to offer creative options that best meet your client’s interests. While there are many ways you can question a person’s reasoning, asking why first anytime you hear a demand from an opposing party will ensure you have the best understanding of the opposing party’s wants and needs when negotiating. 

Remain solution-focused 

Negotiations typically share a common goal of reaching agreement. It’s important that neither party stands on disagreement. The idea that there needs to be some accommodation in order to reach an agreement allows all the parties to avoid stalemating the negotiation. During our competitions, we often saw opposing teams attempting to stay firm in their positions, sometimes refusing even to consider other viable options that would satisfy both parties simply because they did not want to feel as though they were giving anything up. 

Lawyers are typically not tasked with interfering in the method by which business is conducted. Rather they are focused on crafting creative solutions that protect the client while allowing the client to reach their business goals and objectives. Remaining solution-focused will help you steer your client toward examining those options that may ultimately lead to an amicable and desirable solution. 

Anticipate the unexpected and prepare 

No two negotiations will ever be identical, and no amount of preparation can guarantee that either party will be perfectly versed in every issue that arises during a negotiation. During our competitions, we negotiated against parties that employed competitive, collaborative, compromising, accommodating, and avoidant styles. You can never fully anticipate what style of negotiator you will find at the table. It is your responsibility to ensure you are prepared for any negotiation style. 

The competitions allowed us to see firsthand how important it is to anticipate the unexpected and prepare for any and every situation as best we could. One of our multi-party international conflicts revolved around space law, with a minor mention of intellectual property. While most of our preparation revolved around space, construction, and business law, we spent several hours exploring details of intellectual property law as there was a chance it would be discussed during the negotiation. For example, meeting with Michael Olsen, partner at Winthrop and Weinstine, to discuss intellectual property law and the implications of forming agreements with international parties prepared us with knowledge and confidence to be able to articulate the interests and important concerns we shared based on our client’s position in the deal we were crafting. Although intellectual property was not at the forefront of the discussion, it surely made a large impact on the progress of establishing protections for our clients during the conversation and improving our confidence at the table.

While there is no one-size-fits-all approach to a successful negotiation, understanding both parties’ goals and interests, remaining solution-focused, and anticipating the unexpected provide for a great foundation for any negotiator to conduct a productive and meaningful negotiation. 

While in law school, AUSTYN BOOTHE founded an organization to increase law student involvement in bar associations, and worked as a judicial extern for Judge Mark C. Vandelist in the 1st Judicial District. 

DANIEL SHEIKHAN is a Canadian serial entrepreneur and first-generation lawyer with a creative mind for all things business. He also has eight years of experience in the real estate industry.