Vol. 30, No. 6
Review of Legal Resources
Beyond Winning: Negotiating to Create Value in Deals and Disputes and Game, Set, Match: Winning the Negotiations Game
Reviewed by Douglas R. Wright
BEYOND WINNING: NEGOTIATING TO CREATE VALUE IN DEALS AND DISPUTES
By Robert H. Mnookin, Scott R. Peppet, and Anthony S. Tulumello (Cambridge, MA: Harvard University Press, 2000) [The Bellknap Press of Harvard University Press, 79 Garden St., Cambridge, MA 02138; phone orders to (914)-736-1188], 354 pp.; $28.
GAME, SET, MATCH: WINNING THE
By Henry S. Kramer (New York, NY: ALM Publishing, 2001) [American Lawyer Media, 105 Madison Ave., New York, N.Y. 10016; phone orders to (800) 537-2128, x 9138, or order on the Internet at: www.lawcatalog.com], 360 pp.; $19.95 (paperback).
Reviewed by Douglas R. Wright
A partner of Faegre & Benson LLP, Denver, Colorado.
Life and the law are one big negotiation. Consider the five-year-old who wants to stay up an extra half hour, the car purchase, the Qwest-U S West merger, and the failed Microsoft antitrust settlement. Each involves negotiations, some seemingly more critical than others, but each critical to its participants. So why are some better than others at negotiating? How do you "win" a negotiation? Because negotiations are so crucial, many books have been written on the subject. Two recent books, Beyond Winning, Negotiating to Create Value in Deals ("Beyond Winning") and Game, Set, Match: Winning the Negotiations Game ("Winning"), take different approaches to the topic.
Beyond Winning is written for the legal market by the director of the Harvard Negotiation Research Project and two co-authors. This book emphasizes a problem-solving approach to obtaining desired results in negotiations. This theory espouses the view that problem-solving, an alternative to the "traditional" Rambo-like adversarial exchanges of the parties’ positions, allows the parties to enhance their respective outcomes through "value-creating trades." One of the key elements of this theory is that an understanding of each other’s positions, underlying needs, and motivations allows the negotiators to see what the other side really needs to be satisfied with in the deal or settlement. This affords the parties a way to identify solutions that go beyond what might otherwise be under negotiation, that is, "value creation." Through beneficial trades, the parties can enlarge the scope of interests and leave the table better off than they were before. An example is a negotiation of a settlement in a dispute where the parties do not merely sever their ties for money, but engage in an entirely different relationship altogether, such as a supply agreement or license.
Beyond Winning is organized into four parts. The first part discusses the "three tensions" of negotiations: the tension between (1) creating and distributing value; (2) empathy and assertiveness; and (3) principals and agents. The second part reviews the challenges of legal negotiations in dispute resolution and deal-making and the psychological and cultural barriers to a problem-solving approach to negotiations, including emotion and the adversarial, zero-sum mindset. Part three applies the problem-solving approach to deals and disputes and offers advice for using the approach in each area. The authors state at the outset of this part, "The overarching aim is to manage the distributive aspects of bargaining efficiently and create value whenever possible." Finally, part four covers professional and ethical issues applicable to negotiations and the added complexities of multiple-party negotiations and negotiating with organizations. Parts one and three offer the most compelling reading, as the authors describe the three tensions through diagrams and illustrations and then guide the reader through the negotiating process. Part four, in particular, seems oddly out of place in the context of what precedes it.
Winning is geared toward a different audience. The book appears to be focused on the middle manager, small business owner, and relative newcomer to the negotiations game who has had little formal experience negotiating personal or business deals and wants a roadmap to successful negotiations. It takes the reader chronologically through each step of the negotiations process, from planning to the beginning, middle, and end games of negotiation. The book is a self-described "‘nuts and bolts’ approach on how to conduct all types of face to face bargaining." The book begins by discussing succinctly the concepts of objective, strategy, and tactics that are the cornerstones of negotiations. It emphasizes the importance of planning and information-gathering in preparation for a successful negotiation, which is a useful construct. Too often we busy lawyers and our clients fail to get this right. The author hits his stride in the chapters describing the beginning and middle of the negotiation game; he loses steam in describing the end game—how negotiations are wrapped up and the ultimate "winner" is determined.
The author of Winning, a long-time labor negotiator and professor of labor relations, draws on his experiences in that field for many of the examples that highlight his points. As such, the book will appeal most to attorneys who practice in the labor relations field. This may not be the intended result, but these examples tend to overwhelm the reader who is looking for examples in other situations. His emphasis on preparation, research, and pre-negotiation practice and role-playing is apt. His discussion of how to deal with the hurly-burly tactics of negotiation—calling time-outs, dealing with intimidation, and other ploys—also is helpful.
Negotiations are like trying to identify the features of an elephant blindfolded—you have to be careful, and experience helps. Each of these books provides some useful information to practitioners on how to negotiate deals and settlements. Although each tries to create a roadmap for success, unfortunately the road is strewn with broken deals and beaten-down settlement negotiators. Beyond Winning may provide the reader with some fresh ideas about how to negotiate; Winning may supply some guidance about preparation and tactics that may prove useful to the less experienced negotiator. Beyond Winning’s emphasis on creating "win-win" situations (briefly described in Winning, but given relatively short shrift) seems more appropriate in all but the most compelling circumstances, when one party’s negotiating power simply compels the result.
According to the Beyond Winning website (see www.beyond winning.com), the book’s premise also has found acceptance in negotiation-related courses at several law schools, including Harvard, Stanford, and the University of Colorado. If law students, who are typically underprepared for the negotiating game, receive this message, this could be a breath of fresh air in a field dominated by hot air. For practitioners, read these books for background in the negotiating game, or as a refresher if you have been in it for a while. Do not read them expecting to find the ultimate solution to winning negotiations. There may be no such thing.
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