Get to Know Your Opponent: The Fine Art of Negotiating

“Personality is the common denominator in all negotiations,” said Lee Hetherington, professor of law and author of The Lawyers Guide to Negotiation, speaking to a packed room of attendees at the ABA Midyear Meeting, Feb. 6, in Orlando, Fla.  He began the session by defining negotiation as “altering the status quo by consensual means” versus using the alternatives to consensus such as intimidation, physical violence or even war.

Only a smattering of hands shot up when Hetherington asked if anyone had taken a negotiation class in law school; back in his time, during the early 1970s, negotiation skills was considered “something that you could pick it up,” leaving most law grads on their own to figure out the techniques and skills.  Hetherington’s early music industry experience helped him realize there was a strong market for negotiation skills development, and he launched a law school class and workshops to teach the basic principles.  The realization also prompted him to write his book.

Clever, quick-witted and tangential in his references and examples, Hetherington assured the group that the formula for successful negotiation hadn’t changed in 5000 years, and compared it to a pyramid—with understanding personality forming a sturdy foundation. 

Hetherington said that understanding personalities, their traits and styles is “50 percent of the game” in negotiating.  “The better we understand the universal principles of personality, the more we can use that information to determine how people are likely to behave and react in certain situations,” he said.  Like many others, he uses Marston’s four-factor theory to organize his own principles and to define four distinct personality styles: dominant, influential, steadiness and conscientiousness.  Everyone exhibits some degree of each of these traits, but most people have a predominant style that helps determine their behavior.

Emerging from these four styles, are “classic profiles” that are well known, if not labeled as such.  He gave some examples including the Dictator (Richard Nixon, Hitler, Stalin), the Entrepreneur (Donald Trump), the Motivator (John F.  Kennedy), the Promoter (Oprah Winfrey), the Investigator (Bob Woodward) and the Advisor (David Axelrod).  Other classic profiles include the Organizer, Persuader, Specialist, Adaptor, Creator and Perfectionist—each with its own unique set of traits and characteristics.

Using Leverage Effectively

Beyond mastering personality factors, Hetherington encouraged listeners to use the “power of leverage” by employing the four prime movers of bargaining: uncertainty, time, opportunity and sanctions.  Uncertainty is the most powerful, according to Hetherington because “people seek to trade an uncertain future for a certain present.”  The time factor has to do with which side can play the waiting game more effectively.  He revealed, “Ninety percent of all concessions occur in the last 10 percent of the negotiation,” so understanding the opponent’s timeframe is essential.  Opportunity requires finding out “what appeals to the adversary” and trading that for something of greater value to you. 

Sanctions are the trickiest leverage tool because “nobody likes to be threatened.”  And effective use of sanctions requires a willingness to carry out the sanction regardless of its impact.  As an example, he recalled when Major League Baseball umpires threatened to resign rather than negotiate a new contract in 1999.  The umps made good on their threat and resigned; new umpires were brought up from the minor leagues, forcing most of the major league umps out of their jobs.  To be effective, sanctions must be communicated because “it does you no good if the adversary is unaware of sanction.”   

Hetherington encouraged lawyers to “master the mix” and use at least three of the four strategies in their negotiations.