Host Sean Harris talks with Columbus attorney and director of the American Negotiation Institute, Kwame Christian, about how to become a better negotiator.
Sean: Hello and welcome to Civilly Speaking, OAJ’s monthly podcast on practical and timely legal issues, I’m your host Sean Harris. We’re very excited to have with us today Kwame Christian, who is an attorney in Columbus, as well as the director of the American Negotiation Institute. Kwame Christian, thanks for joining us here on Civilly Speaking.
Kwame: Thanks for having me Sean.
Sean: When we say negotiations, now lawyers think they know what that means, but what does that term mean to you?
Kwame: I like a very broad definition of what a negotiation is. So the definition I use is any conversation where somebody wants something and so with that kind of broad definition we recognize that negotiation is everywhere. And so I think as attorneys we often have a really myopic perspective on what a negotiation is. So we go into these conversations with opposing council and you say this is a negotiation, but we don’t think about the conversations with our clients as negotiations and the conversations we have with our colleagues and piers or the conversations we have at home with our wife and children, it’s all negotiation.
Sean: If you have a desired result, you’re negotiating?
Sean: And probably fair to assume that the other side is negotiating?
Kwame: Yeah, exactly.
Sean: So why and I appreciate that view, that negotiation is more than just you know kind of back and forth, but so how you know, how do we study that or why is it important to try and improve negotiation skills?
Kwame: It’s important to improve it because whether we want to or not, we’re going to be negotiating anyway so we mine as well get good at it and I think also having this perspective allows us to recognize when we can use these skills because if I’m having a conversation that is a negotiation, but I don’t recognize it’s a negotiation I lose the opportunity to strengthen relationships and get more of what I want. It’s like, imagine I’m walking down the street and I get in a fight and I don’t notice it, that’s going to spell bad news for me. So I want more people to be aware of these opportunities to get more and communicate effectively.
Sean: And when you say communicate effectively give us some thoughts or ideas about what that means or what are some best practices.
Kwame: First thing we need to do is listen and you know it sounds so…
Sean: You mean before we start talking?
Kwame: Exactly, see this is the problem with, with us as attorneys because we’re typically pretty type A, we want what we want, and we want it quickly and the problem is we’re going up against other attorneys who think the same way and then going deeper, we’re in an adversarial system where just by the way this system is designed, we are seeing the other side as opponents and just that mentality alone puts us in a situation where we create a zero sum game where my winning necessitates your losing and when we approach conversations in this way, the other sides not going to want to relent because in their mind compromise means a loss and so we just fight instead of communicate.
Sean: And compromise should equate to a resolution.
Kwame: Exactly, and in my opinion a lot of times the people who get hurt the most are the clients. We get paid regardless, well depending on your industry, but yeah we get paid but especially in the situations where we’re trading time for dollars the longer this goes the more our clients suffer unnecessarily so if we were more efficient we would be able to get better resolutions for our clients and we would be more efficient in getting to that conclusion as well.
Sean: And well you’ve mentioned clients a couple times and I’m certainly there are examples in my head coming up of clients who wanted to negotiate with me. Talk to us about that kind of unique balance when you’re negotiating with your own client.
Kwame: Yea and I think the big one happens even after we are retained because we need to manage their expectations and so I know and especially in your line of work with personal injury we have people who, they break there leg, their like I am going to get paid today and so your first negotiation needs to be with them to manage those expectations before we even start advocating on their behalf because if we go out there and get a reasonable settlement and then we bring it back and their expectations are skewed to something that’s unrealistic, they’re going to rate you poorly even though you did a good job.
Sean: And I suppose that goes back to what you said before that communication is critical here and by the way when we’re talking about setting expectation or managing client expectation, you know I must have been absent the day in law school that they cover that because I don’t remember them mentioning that and could there be a more important issue to be aware of in the practice of law.
Kwame: It is a serious omission, and I think it’s one of the most important things we can do because we can have the exact, get the exact same result, but just depending on the expectations of our client they would rate us significantly differently if they anticipated us getting one x versus two x.
Sean: You know I’ve now modified my client intake sheet as a matter a fact to ask from the very first meeting do you have any goals or expectations for this case. Nine times out of ten they don’t, right? They say I want my medical bills paid or something like that and whatever it is I write down those words so that when it comes time to review the settlement offering they say wait a minute, this is a slap in the face, this is outrageous. Well remember what you told me initially, okay apparently that’s changed, let’s talk about where we are now.
Kwame: Right, exactly and its important, I think especially we want to create a paper trail whenever that’s done because whenever money gets put on the table people seem to forget so I think it’s a smart move to get that down in writing too.
Sean: Well, when we’re talking about negotiations and alternative dispute resolutions are there pitfalls or dangers that we should be on guard for?
Kwame: Absolutely and I think going back to what I said with us as attorneys, being type A and not wanting to lose or actually I guess the biggest issue is conceptualizing this in a win lose type of manner, we can tend to fall victim to the idea that we are litigating at all times. So in the majority of the cases when we are talking to one another as attorneys, there’s no judge, there is no jury, it’s just us, but what we end up doing, we start throwing legal arguments back and forth and in the eyes of our clients those are the people who really matter in this case. There not going to take a law back to their family and feed their family with a law, they’re here talking about money, they’re talking about substantive outcomes, those type of things. The law, those are the tools that we use to communicate as attorneys, but a lot of times when we approach this in a strictly legal manner we kind of lose sight of the fact that most likely we are going to settle, that’s the first thing and we need really need to focus on the substantive interest of both of our clients and one of the things I get to do, which is one of the most fun things I get to do as part of the negotiation institute is that people reach out to me to be a consultant on some of their cases, lawyers do and so what’s interesting is a number of times I’ve been retained to negotiate on behalf on an attorney in a bankruptcy situation. Now something about me, I never took a bankruptcy class, I’ve never had a bankrupt case, I know nothing..
Sean: About substantive law.
Kwame: Nope, but I come into the negotiation and I close the deals because I think that’s an advantage, they can talk about the law all they want, that’s a really good point, but my client wants this, your client wants that, how can we reach an agreement and ultimately we kind of cut through the BS and get to the substance and that’s really where the meat of the matter is.
Sean: So it’s almost an advantage to not know the law.
Sean: And tell us about how that works or as an example what kind of negotiation and techniques did you use in a situation like that?
Kwame: So the first one if dodging, because whenever somebody would say, hey you know this law blah blah blah and I would just simply say, listen, we wouldn’t be here in this position, in this time, if we didn’t think we had some good legal arguments too. If you want to talk about the law, you can talk to my co-council blah blah and he’ll discuss the law with you, but right now I’m just interested in learning more about your perspective on the situation and what your client would like and so I sit down and I listen and so I focus on preparation beforehand, I come out with a list of open ended questions so I can gather as much information as possible and really in the first one or two conversations I don’t even come in there wanting to say anything. I don’t even say anything about what my client wants. I keep the breakdown of conversation maybe even 90/10, I’m only speaking 10% they are speaking 90% and I leave the conversation with pages of notes, go back analyze, prepare again and then come back and I think about it in terms of like an archer with a quiver full of arrows, I only have a few. I am not going to go and spray wildly and so I am going to make my substantive points when the time is right, when I know you’re going to be listening, but if I don’t think you’re ready I am not going to say it. So its takes patience.
Sean: Patience, listening, is there a chronology or a kind of step by step process that you follow?
Kwame: Yes and no because you need to be fluid, you need to know how you’re talking to. A lot of times, if I am dealing with somebody who’s upset, I rely on my background in psychology. I put down my bar exam passage and I pick up that psych degree and play the role of therapist and I just dig deep into it. Okay, so why are you feeling this way? Okay, I understand that, mirroring letting them get all of that out of their system because I know when they are still in a psychological state of rage or frustration, they’re not willing to listen to me, no matter how good my points are, they’re not ready for it so I need to sit back and let them say what they need to say and the whole time I am gathering information which makes that arrow when its ready is going to go true, straight where it needs to go because I ‘ve waited and measured for the right time.
Sean: And I don’t have a psychology background, but I have noticed over the years exactly that phenomenon that you’ve described and the way I always talked about it was that there are just clients who need to be heard, they need other people to understand how they feel, what’s happened to them, how they feel about that process before there even mentally able to start talking about resolving their case.
Kwame: Exactly, and what’s interesting to is when you do that, you might find out that the only barrier to agreement wasn’t in the substance, wasn’t in the law, it was simply in the emotion and if you get the person the opportunity to vent, they will outline the terms that work for them. Before and I can list a number of cases where somebody’s like the time for negotiation has passed, there’s no negotiation happening, I’m like okay buddy I will let you get that out of your system.
Sean: Oh wait so this applies to lawyers and clients?
Kwame: Oh Yes, all the time and it’s so funny because I might get about fifteen or twenty minutes of fire, of just emotional fire from this attorney or from my client, I’ll take it and then at the end the attorney would miraculously say, so with all that being said I guess really what we would agree to is blah blah blah blah blah. Okay thank you.
Sean: Now we’ve gotten down to what really matters.
Kwame: Exactly, now we are down to the substance, now I have coaxed out an actual offer, where I can negotiate. This is new information to me; I am going to take my time. I am not going to try and freestyle this conversation. I am going to take this, analyze it, prepare, come back and now when we’re all on level playing fields when we’re level headed, now I can utilize these negotiation tactics and this works even when somebody wants to combat or go against me with law. This is not productive because we need to talk about the substance of the deal.
Sean: And how to resolve the case.
Sean: And that does presume, of course, that you have two parties that are willing to compromise and resolve.
Kwame: Yeah, and in that case what we would do is, it depends so sometimes our parties, the clients cannot communicate to each other and then we come in as the adults and have the conversation. Sometimes the opposing council the relationship is to fractured to even have that conversation as lawyers and I think that’s when we have a third party mediator come through.
Sean: And I was going to ask you about that, in kind of under the umbrella of negotiations with the jury trials being fewer and farther between these days, mediation is a pretty popular method of resolution. How do your ideas and techniques apply to the mediation setting?
Kwame: It depends on the mediator too and so when I go into these situations, be it a negotiation or a mediation I put everybody and everything through what I call the dating test and so I ask myself how much would I want to know about this person if I wanted to date them and so that takes our level of analysis to new heights because I’m not just looking at your prior opinions, I’m not just looking at your LinkedIn, I’m looking at your Twitter, your Facebook, your blogs. I remember one time, this was this year, I read a blog that opposing council wrote back to 2013 to find out everything that made them tick, you know and so when I come into these conversations, not only do I have a really good understanding of whose sitting at the table, but I also know which landmines to avoid. There are certain things I could say inadvertently that might be completely reasonable, that might set somebody off.
Sean: That won’t be received as you intended.
Kwame: Exactly and one of my favorite tricks to use in these conversations and what’s beautiful about it is that it’s such a non-threatening question is that I would ask them essentially the magic question. So let’s say if you could wave a magic wand to make this deal work, what would it look like and so what we do is we have that person essentially engage in a brain storming session with me. What does this deal look like because we are at a point sometimes where they’re like there’s no possibility of a deal. I was like okay well if there was one what would it look like and then we start to see that it’s pretty realistic. Another one is trying to figure out what kind of characteristics they look for in a deal to know that it’s a good deal so I would ask in the past when you have gone through settlement mediations how did you know you were getting a good deal? Different people say different things and so I remember one time this person said well the judge was pushing me pretty hard on my position so I knew that I needed to alter my position. So now when I was going back to my client the other attorney I recognized well for this guy I don’t think our best move is to try and negotiate with him directly, we should try and convince the mediator and the mediator who is a retired judge has the respect of this person and lets have the judge do the work for us and so you can draft a negotiation strategy based off those type of things.
Sean: Kwame from your perspective how are lawyers trained skill wise to negotiate well?
Kwame: No. No, not at all. So let’s think about how we went through law school. If you wanted to take a class on negotiation or mediation those were almost specialty courses and so you would have to really go out of your way to take those courses and even if you wanted to there weren’t that many options. Now we go and take the bar exam that’s all substantive law and now we get into practice, again all substantive law so at that point how, where how do we learn to negotiate with each other effectively? It’s just trial and error and so when I think about other professions that have, that don’t deal with things as important as us, it’s NBA season let’s talk about basketball. How do basketball players train and so you have layup lines, let’s practice shooting three pointers, let’s practice dribbling, let’s practice boxing out and what you see is that they are practicing each incremental part of the composite whole to make sure that there game is solid. When do we do that? We never do that and so during my trainings when I come in and do CLE’s for attorneys at different law firms I kind of break negotiation down into its key components. So I don’t think it’s really that great to come in and have a seminar and have people say oh that’s a really great point, it needs to be more than that. So in one of the last trainings that I did, I created a negotiation hypothetical situation that was unsolvable because I didn’t want them to try and focus on the deal, it was unsolvable I wanted you to focus on the skills and so the most important still in negotiation, the two most important skills is the ability to ask great, open ended questions because you are able to get more information and listen, and so this was the catch. So when you’re going through this negotiation, you are keeping track of how many sentences the other side says and they are keeping track of how many sentences you say and the person who says the most sentences loses and if you interrupt you are penalized ten sentences and so what happened is fascinating. I was just sitting there like a kid in a candy shop.
Kwame: Because what ended up happening was that the lawyers in this simulation started moving in slow motion. They started asking great questions and then sitting back because the only way to keep the ball on the other side of the court was by asking questions so it would force them to focus on asking questions, so that’s one thing. The second thing is it kept their points incredibly succinct. So they never said more than what they needed to say, they only said what was absolutely necessary and so the fact that they were able to slow it down and focus on questions was just fascinating because now I know when they use these techniques subsequently they are going to be a little more cognizant of how much they say and how many questions they ask.
Sean: Yeah, it reminds me or it feels like you know almost a good jury selection. That you want to be letting them do all the talking and you do all the listening.
Kwame: Exactly, you can’t learn if you are talking and at the end of the day negotiation is an information game. It’s like I said in those examples earlier, my goal is just to listen, gather as much information, restrategize, then come back gather more information restrategize, then when the time is right I’ll say what I need to say, nothing more, nothing less and what’s fascinating is throughout that process the other person feels like they are in complete control because they feel like hey I’m the one talking, I’m the one dictating, but really at the end of the day, it’s the person whose asking the questions whose steering the conversation.
Sean: Yeah, that’s right if they want to feel like they’re in control let them.
Kwame: Exactly, because when they feel comfortable, they’re going to share more information and it builds more trust and that’s really the gap between a lot of these deals, do I trust this person to comply at the end of the day and when you can build that trust you’re going to be closer to a deal then when you were at the beginning of the conversation.
Sean: Kwame you also have your own podcast through the American Negotiation Institute and I recommend it to all our listeners it’s called Negotiate Anything, it’s on iTunes. Tell us about that.
Kwame: Yeah, so it’s been fun. We are a year old, which is exciting and yeah it’s called Negotiate Anything and I interview people who are professionals who are thought leaders in the industry and ask them what their perspectives are on negotiation and have them teach a specific skill and what’s been interesting is how people have different interests and so for instance the episodes that I think would be really interesting, sometimes the audience doesn’t think it’s that interesting. The episodes that have been really popular have been, well the episode with Jim Tressel, of course, persuasive leadership that was huge. We had an author, the author of Never Split the Difference, he’s a former FBI hostage negotiator and he takes those principles and uses it in a business context so that was fascinating seeing his perspective because he comes from a world where he needs to get 100% of what he wants because you can’t say okay you can have four hostages. So he has to get all of what you want, all of what he wants, has to get the other person to like him and get the other person to agree to be taken to jail at the end of this interaction. So he’s coming from a completely different perspective when it comes to negotiation so that was really cool and then some of the fun episodes that I did, that were surprisingly successful, were the Holiday Conflict Guide. It was right before Thanksgiving and in the amidst of the election and I said listen listeners you all are going to have some terrible conversations so let me prepare you for how to do it, how to deal with those and another popular one was Forget Yes, How do I say No focusing on how to say no effectively in a way that actually strengthens your relationship with a person and then the Holiday Gift Giving Guide, which was laying out some psychological techniques you can use to amplify the perspective of the recipients of your gifts, so it’s been fun, it’s been a fun journey so check it out, it’s called Negotiate Anything.
Sean: Well it’s been fun having you here on Civilly Speaking, we appreciate it. Kwame Christian thanks very much.
Kwame: Thanks for having me.