b. Hints from Herb Cohen’s “You Can Negotiate Anything”

b. Hints from Herb Cohen’s “You Can Negotiate Anything”

(“Our best thoughts come from others.” R.W. Emerson)

1. 
   The importance of information, time (As long as you get there before its over you’re never late) and power. (Power the capacity to get things done): If you think you’ve got it, you do. If you believe firmly that you have power, you will convey that to others and they will believe you.
   

2. 
   Take some risks (shrewdly calculated, based on solid information), break free from the precedent of past experiences, challenge assumptions, believe you have power and increase your expectations.
   

3. 
   In taking risks, use a combination of courage and common sense. Calculate the odds. (example of coin flip: 1: You win = $1 million; you lose $100,000 (not many people will take bet) 2 = you win = $100; you lose, you pay $10 - a more reasonable bet). Look at the possibility of syndicating a risk.
   

4. 
   As a general rule, when the outlook is uncertain, involve others (people support what they help create). The importance of a collaborative negotiation.
   

5. 
   Power. The importance of the appearance of power. You can become what you believe you are (the Wizard of Oz.)
   

6. 
   “Within reason, you can get whatever you want if you’re aware of your options, if you test your assumptions, if you take reasonably calculated risks, based on solid information, and if you believe you have power.” (Example of a prisoner asking a guard for a Marlboro)
   

7. 
   The “power of legitimacy” (the advantage of the standard form). Use when advantageous, challenge when appropriate. (Example: Why do 55% of Americans vote in a good year, but 95% check out of a hotel by the mandatory check-out time?) (Candid Camera example of sign at the border that “Delaware is Closed”.)
   

8. 
   Always induce the other side to invest in a situation (the power of investment). Involvement > commitment > power. (Example: You negotiate two hours with a store owner. Ultimately he needs to make a sale to justify the time spent.) (Example: After a morning of presentation by a corporate executive to a Japanese delegation, the Japanese ask: Could you go over that one more time?) Tactic of the nibble.
   

9. 
   Never make an ultimatum before the end of a negotiation. It’s like icing on the cake. You need to bake the cake first.
   

10. 
    Help me. Admit you do not have all the answers and ask for help. You can turn a weakness into a strength. (Example of my experience in Algeria.)
    

11. 
    The power of competition. (Example: C2E negotiations.) (Example: A potential Russian real estate joint venture partner asserts he does not really need a partner because his banks have already agreed to finance the entire project.)
    

12. 
    Never enter a negotiation without options.
    

13. 
    The power of “expertise”. Try to establish your credentials and expertise early in the negotiation.
    

14. 
    The power of the knowledge of needs.
    

15. 
    The power of rewarding and punishing.
    

16. 
    The power of identification. Get others to identify with you. You need to have others know you personally and respect you. (Example: Personal contacts with supers in the neighborhood when looking for an apartment.) Personalize yourself and the situation. Get others emotionally involved. Robert Maxwell used to say to a negotiating partner, “Hey you are juggling a lot of balls in the air. Just remember that two of them are mine. If a policeman pulls you over for speeding, say “I’m lost. Do you know how the find such and such place. Oh, my goodness. I never speed. This would be my first violation in 25 years.” Example of me and my children being stricken from an international Delta flight from Florida to Paris. I responded by saying I was a lawyer and that I was going to make a scandal. The hostess asked me if I would like her to call the security guard. I realized that the approach of menacing was not going to work, so I mentioned how important it was to get my kids back to school on time. She finally gave us $1,200 in free tickets and re-routed us an hour later on another flight – in first class! Personalize power. Negotiate personally, not on behalf of a company, organization, etc. You help determine your destiny by your own efforts.
    

17. 
    The power of morality. Ethical negotiations. (Example: Jimmy Carter.) (Richard Nixon: first an anti-communist, then a law and order advocate.) (Ronald Reagan on the Russian “Evil Empire” or George W. Bush and the “Axis of Evil”.)
    

18. 
    The power of precedent. In relying on precedent argue “Don’t make waves” or “Don’t argue with success”.
    

19. 
    The power of persistence. Be tenacious like the child who calls out to his father from his bed, “Dad, could I have a glass of water?” Father: “No”. The child later: “Dad, could I have a glass of water?” The father, getting mad: “I just said no. Go to sleep.” The child again asks for water. The father replies, “If you don’t shut up I’m going to give you a spanking.” The child: “When you come to give me the spanking, would you please bring me a glass of water?”
    

20. 
    The power of persuasive capacity (rather than just the power of reasoning capacity). You must convince others of what you are saying, your evidence should be overwhelming and indisputable and the other side’s believing you must meet their need.
    

21. 
    The power of attitude. You always do a better job negotiating for others than for yourself. Need to take negotiation less seriously, as a game, as a world of illusion. Develop the attitude of caring, but not too much. Treat negotiating like a game. You will enjoy it more, reduce stress and get better results.
    

22. 
    Time. Deadlines, real or fictitious (example: April 15 in the US). Use them and know how to deal with them. (Example: You go see your boss for a raise in salary. His secretary informs you beforehand that you have to hurry because he has an important meeting in five minutes.) Know yours and the other side’s deadline. All the action usually occurs at the eleventh hour. Be patient. Don’t reveal your deadline (Example of Japanese asking upon your arrival when you are leaving in order to reserve limo; Japanese concluded deal in limo to airport at end of scheduled 14^th day). Also, deadlines (the end of negotiations) are always more flexible than either side realizes. Precipitous action should be taken only when guaranteed to be in your advantage.
    

23. 
    Information. Start the process of information gathering before the negotiation. Speak with the other side’s associates or assistants. Carefully give your own information to get the other side’s.
    

24. 
    The importance of cues (unintentional, verbal or behavioral). (Example of boss who you are seeing for a raise in salary – first he looks out the window, then rubs his chin, yawns, leans back in his chair, drums the desk with his finger and finally put his arm around your back and escorts you out of the office, complimenting you on the good job you are doing.)
    

25. 
    Why can’t you just tell it like it is. Because to achieve a collaborative result in a competitive environment, you have to play the game.
    

26. 
    Styles of negotiating (win at all costs (Soviet style), sign anything and renegotiate all the time (Maxwell style) or negotiate for mutual satisfaction (win-win).
    

27. 
    Soviet style: six steps: extreme initial positions, limited authority; emotional tactics; adversary concessions viewed as a weakness; stingy in concessions; ignore deadlines. How to deal with this: walk away, negotiate in the same way and beat the other side at its own game or redirect the negotiation to a win-win situation.
    

28. 
    Maxwell style (also used by the Russians): Accept everything and sign anything to please, then never respect the contract and renegotiate all the time.
    

29. 
    Win-win (negotiating for mutual satisfaction). Example of piece of pie to be split between two brothers: parent has one cut and the other choose. Shift focus from defeating each other to defeating the problem. If the pie is of a fixed size and one side wins and the other loses, need to try to find ways to increase the size of the pie.
    

30. 
    Lubricant demeanor. Harmonize or reconcile needs.
    

31. 
    Build trust (necessary in a continuing relationship; develop trust at both the process stage and at the negotiating event), gain commitment, manage opposition. Never do anything that will destroy the other side’s confidence in you. As Robert Maxwell was fond of saying, “Confidence is like virginity. You only lose it once.”
    

32. 
    Game plan: Establish trust, obtain information, meet the other side’s needs; use the other side’s ideas; transform the relationship into collaboration; take a moderate risk; get the other side’s help, achieve your goals on the most favorable terms.
    

33. 
    Opposition: Idea opponents can be dealt with on an intellectual level; they should be seen as potential allies. Visceral opponents disagree with you but also disagree with you as a human being. Do not humiliate o attack the other side’s “face” or he becomes a visceral opponent. Jefferson “Nothing gives a person so much advantage over another as to remain always cool and unruffled under all circumstances.” Never judge the actions and motives of others. The importance of compromise. Use the collaborative approach and go for solutions rather than constantly taking an adversarial approach.
    

34. 
    Who said “Never get angry. Never make a threat. Reason with people”? Don Corleone – The Godfather.
    

1. 
   Eurodisneyland: Collaborative negotiation; use of lead negotiators.`
   

2. 
   Gas stations and HLMs in Algeria: When I was criticized for not being an Algerian lawyer, I said, “Help me.”
   

3. 
   KECO-Cogema-Gabon: At the outset I qualified myself as an expert, partly by clever preparation, partly by bluff.
   

4. 
   Bourriez-Beatrice Foods: Sometimes go for the totally unexpected.
   

5. 
   Murray Abraham film negotiation: Turn a potential lawsuit into a new film deal)
   

6. 
   Sun Chemical-Pechiney: How to lose control and waste timer and money – let the other side (especially if it is a big multinational company) submit the first draft.
   

7. 
   Sun Chemical-Total: Horses for courses, team negotiation.
   

8. 
   Maxwell-C2E: The power of competition – three companies trying to acquire my client’s company.
   

9. 
   DLNI acquisition agreement: The necessity of using the Wall Street firm’s tried and trusted model acquisition agreement as a basis for drafting rather than inventing something entirely new.
   

10. 
    Leonardo Finance: The need for flexibility in a highly competitive environment.
    

11. 
    AIC acquisition, settlement agreement: The importance of thorough preparation at every step of the way.
    

12. 
    IDS-McCulloch: How to seduce the enemy and get what you want with a smile.
    

13. 
    Maurel-US distributor: Don’t bring “Bob the Closer” for a deal you probably don’t want.
    

14. 
    Mobil Oil–Marcor merger: Mega-teams for mega deals. The client needs not only top legal advice, but an “insurance policy”. Horses for courses.
    

15. 
    Security Pacific–Chase: How to bridge culture gaps.
    

16. 
    Peter Brook-Broadway production: Do away with the complicated, patchwork model contract and do a haute couture contact (sur mesure), but beware that you don’t inadvertently forget something important hidden away in the model’s boilerplate (like derivative music rights)
    

17. 
    Citizens’ Fidelity-Givaudan: Win win. When there is enough play, get more for almost everyone.
    

18. 
    Givenchy-Tapie: How to bluff and get a big price from a big ego.
    

19. 
    Givenchy-LVMH: How to be obnoxiously persistent and take several bites of the apple (and get your fees paid by the other side) (but it is good to have a friendly sidekick).
    

20. 
    Givenchy-Christies’: When you know how badly the other side needs the deal you can negotiate almost anything, even beyond reason.
    

21. 
    RVP gimmick: When you are negotiating for someone else (particularly if you are a lawyer), negotiate a financial or other quantifiable result that more than covers the cost of your legal fees or work.
    

22. 
    Maxwell-Suez: How to kill a deal with professional courtesy and a smile.
    

23. 
    The Edward de Bono method of creative thinking (he taught Boeing engineers how to become creative by asking them to consider new designs that would be necessary if a jet landed on its tail). Look at something from a very different or sometimes even only a slightly different point of view. Example of my purchase of a beach house in Florida. Rather than negotiating the high price, I accepted the price, which put the seller immediately at ease, and then proceeded to negotiate what to him appeared to be minor matters, the right to take most of the furniture, guarantees concerning delicate matters (roof, wiring, etc.) which if they posed a problem, would ultimately result in a reduction of the price.
    

24. 
    Maxwel lible suit: Go from libel which cannot be shown to a new concept of “systematic denigration”.
    

25. 
    How to be “Bob the Closer”: Let your role as closer be known at the outset. Make closing the deal your most important goal. Make all reasonable compromises to close. Be tenacious, persistent, creative and friendly. Facilitate everything possible. Take on the burdensome chores of the closing.
    

1. 
   Choice of strategy
   

2. 
   Techniques and tactics
   

Go for the “home base” advantage and negotiate when possible on your own home turf unless there is a practical advantage being at the other party’s premises (e.g., to get first hand observations of the other party’s operations). (Example of NOGA arbitration in the New York offices of the Russian Federation’s law firm.) You have better logistics, will not be tired from travel or jet lag, there will be a psychological advantage, you have more people available for negotiation, administrative, secretarial work, your decision makers are nearby, etc.