Original Published February 2003 in the ICM Update by the
Institute for Conflict Management
You seat yourself at the negotiating table. You propose a settlement supported by your best, most rational arguments. You look for a response couched in equally rational terms. Instead, your negotiating partner studies you for a moment and then simply says “No.” What do you do now?
We have all seen this behavior. This is the classic case of the chessplayer versus the poker player.
A chessplayer comes to the table with many of his moves planned. He has digested the case file and knows every relevant fact and rule of law. His offers and counter-offers have largely been predetermined to arrive at the desired settlement range. He has prepared his arguments and counter-arguments in support of the offers. He thinks he is in total command of the playing field and that his emphasis on strategy and pre-programmed tactics will carry the day.
Unfortunately, he has not counted on his negotiating partner’s seemingly irrational behavior. His colleague may not be as prepared on the law or the facts as is the chessplayer. What his negotiating partner does know, however, is the chessplayer – his facial features, his voice, his body language. He is looking for “tells” in the chessplayer’s demeanor that will signal to him what the chessplayer’s position really is – he is a poker player assessing his mark.
To excel at negotiation requires both poker skills and chess skills, a study of the human heart as well as the study of law. Thus, the best negotiators know how to play both chess and poker. Following is a brief description of their characteristics.
The chessplaying negotiator understands strategy and the importance of careful preparation. The hallmark of chess is the player’s anticipation of the moves the opponent might make. Preparation for negotiation, therefore, means not only preparing one’s own arguments, but also anticipating the opponent’s responses. Indeed, just as in chess, the good negotiator must not only anticipate such responses, but also count on such responses to further the negotiator’s aims. By this device, the good negotiator can maneuver his opponent into awkward positions, perhaps thereby to ready him or her for the negotiator’s real goals.
A number of negotiating strategies can accomplish this result. For example, one classic stratagem, at least in integrative bargaining, is for the parties to itemize the various issues between them. As the parties go down the list, the good negotiator will obtain the agreement of the other party to as many of these items as possible, while agreeing to only the least objectionable items. As the negotiation wears on, and the parties perhaps reach impasse on the remaining items, the good negotiator might say something like “Why don’t we split the difference on these.” But in fact, the negotiator will have already obtained agreement on more than half the items, and splitting the remainder maximizes his benefits from the negotiation.
Similarly, many negotiators create false issues on items that are in fact unimportant to the negotiator. He or she may even save his or her most vociferous arguments for these issues. By causing the negotiating partner to spend so much energy on these issues, the negotiator can “concede” these issues, “reluctantly,” in exchange for agreement on the issues the negotiator really does care about.
The chessplayer negotiator knows a number of other such strategies that are beyond the scope of this article to enumerate. Only through careful advance planning, however, can such strategies bear fruit in the negotiation.
The Poker Player
Detailed preparation is, of course, necessary and too often neglected by practitioners. But all the substantive preparation in the world may not help you if you cannot read the demeanor and behavior of your negotiating partner.
Studies conclude that humans communicate 7% by means of the actual words used; 38% by means of various vocal qualities (tone, pitch, speed, etc.); and the balance of 55% through body language. 1 Given that vision is a human’s main means of interacting with his or her environment, it makes sense that communication occurs primarily by observation. Indeed, long before verbal human languages existed, man communicated through sound, gesticulation and facial expressions.
Following are some examples of typical behaviors and what they might mean 2
Hands on table, interlaced fingers-Self-control
Steepling of hands-Confidence
Open arms and hands-Openness, acceptance
Index finger to cheek; taking glasses off and cleaning them-Evaluation
Sitting on edge of chair-Readiness
Crossed arms on chest-Defensiveness
Not looking at you; sideways glance-Suspicion
Chewing on pen; rubbing thumb on thumb-Nonreassuring
Doodling; drumming; blank stare-Boredom
Straight finger touching nose; hands over mouth-doubtfulness
Stepping aside; backing away-Deference
Clearing throat; hands covering mouth when speaking; tugging of ear; wringing of hands-Nervousness
Tightly clenched hands; rubbing back of neck-Frustration
Mere observation of behavior, however, still does not provide sufficient information to the attentive negotiator. As the English poet Alexander Pope long ago observed when commenting on poetry, “The sound should be an echo to the sense.” Thus, the sound of the words used also can convey significant meaning.
Consider, for example, the following sentence: “I didn’t say he took the money.”3 Think about its meaning. Now consider the possible alternative meanings depending on where the speaker places his emphasis:
Under such circumstances, the good negotiator must look to verbal cues and listen carefully, not only to the words, but also to the manner in which the words are spoken, in order to discover the hidden meaning of his negotiating partner’s statements. The good negotiator, therefore, must become an observant poker player if he or she desires to obtain the maximum benefit for his or her client.
Thus, when you enter a negotiation, you should bring the skills of the chessplayer as well as of the poker player. Prepare carefully, analyze the matter, but also assess your negotiating partner. Time your pre-planned moves based on your assessment, and be ready to vary from them if your assessment of your partner suggests you should. By combining these skills, you will be sure to improve your negotiation results.
1 Mediation Advocacy, John W. Cooley (NITA 1996), at 130.
2 Id. at 132, 134.
3 Professor Randy Lowry of the Straus Institute of Dispute Resolution of the Pepperdine University School of Law provided this example.
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