There ain’t no rules around here! We’re trying to accomplish something!
ACTUAL “CASE HISTORY”: Our firm’s law practice is devoted exclusively to navigation and negotiation of workplace issues. We are continually engaged in workplace negotiations in various places, of various kinds, on a variety of topics. Many are face-to-face meetings in conference rooms. Often our negotiations occur over the telephone. Some of our workplace negotiations take place in judges’ chambers. Don’t laugh: I remember one workplace negotiation that took place on a ski lift.
Some of our workplace negotiating regards the terms of new employment. Other negotiations are intended to enhance the terms and conditions of severance packages. Increased compensation can be the subject, as well. At times, they concern the manner and terms of an executive’s firing for misconduct. The number of potential topics is without limit.
Over time, we have found that certain steps we take in our negotiation meetings tend to bring about more success. In discussions with clients, and among ourselves, we have come to value certain “practices” as extremely helpful. For this reason, we try our best to incorporate these “rules” into every negotiation meeting we attend, and every negotiation telephone call in which we participate.
We call them “rules,” but we know, too, that every “rule” has at least one exception. But the more we incorporate these rules, the more we see them as important to follow. As healthy habits promote better health, these seven “rules” increase your chances of achieving more success at your own negotiation meetings.
LESSON TO LEARN: Successful negotiations require focus, preparation and follow-up. But how do you prepare for a meeting with your boss? What do you do at a negotiation meeting with Human Resources? Are there any things to do after a meeting with your employer’s attorney?
To prepare, engage and follow-up successful workplace negotiations we offer these “Seven Rules to Ensure Successful Negotiation Meetings.” We encourage you try to incorporate as many of our “rules” as you can into your own workplace negotiation meetings. No one incorporates all of these “rules” into every one of their negotiations, but the more you have incorporated, the more empowered you will be.
Incidentally, when the “other side” sees that you are focused, organized, prepared, and proactive, they will often tend to “give you the reigns” early on. That is, they will often concede both the meeting’s process and the points of negotiation, due to their own laziness, disorganization and, too, intimidation by all you have done. That is how effective following these rules can be.
WHAT YOU CAN DO: Here are our “seven rules” for ensuring your own success in negotiation meetings:
1. Set the Agenda: Before participating in any workplace negotiation meeting, make sure you know what will take place at the meeting. Try never to attend any negotiation meeting, or any meeting that may become a negotiation meeting, without listing what the participants expect will take place at the meeting. Then distribute that agenda beforehand by email.
This will help ensure that: (a) you won’t be “blindsided” by unexpected discussion or demand for response; (b) the intended subjects of discussion will all be discussed, (c) no new subjects will take up the meeting time; (d) no one will be able to “hijack” the meeting to serve their own, different agenda, and (e) your own preparation to discuss the intended subjects will serve to your greatest benefit.
Simply put, attending a negotiation meeting of any kind without knowing (a) your agenda, and, (b) the other side’s (claimed) agenda, is a big mistake, and likely to result in a poor negotiation result for you.
My partner and I were once requested by opposing legal counsel to come to their offices to attend a negotiation meeting. When we asked what was their agenda, we were told “To talk turkey.” We believed that meant, “To talk settlement.” I should have known better. When we arrived, we were told they wanted to ask us information about our client’s case, including the names of witnesses. I told them “Sorry, that is not on the agenda,” and we left, but not until I told them they were turkeys, or some other such barnyard animal.
2. Identify the Participants: Will there be three people at the meeting, or twenty-three? Will you be among reasonable and rational people you know and enjoy, or will you be confronted by your worst enemy, whose presence literally gives you hives? It goes without saying that, if you know your audience in advance, you can better prepare yourself to persuade that audience. Thus, it is important to identify the meeting participants in advance, preferably by email. This will give you the opportunity to make objection to the presence of objectionable people.
For example, employers often call employees to meetings where the employer’s attorneys will be present, and our presence is forbidden. As we all know, attorneys can sometimes be intimidating, or “trick” people into saying things they would not ordinarily say, or take short, simple statements out of context. To prevent our clients from being taken advantage of, if we are not to be present at a meeting, we always encourage our clients to insist on knowing if the employer’s lawyers will be in the room. If so, we encourage them to make written objection to the appearance of the employer’s legal counsel. This request is usually honored, and makes our clients a bit more relaxed about attending without us.
Likewise, if the employer is going to have an expert in pension law in the room, we may bring our own pension law expert so we can refute statements of their pension law expert.
3. Find Out if the Meeting will be “Recorded” in Any Way: In some cases, a “record” of negotiation meetings is made. We have seen this often when we are negotiating the resolution of an allegation of misconduct, hostility or harassment (either by our client or against our client.) The “record” is usually in the form of a stenographer, a laptop typist (or two), or an audio recording. Additionally, when telephone negotiations take place regarding new employment, it is not uncommon for the employer (or its legal counsel) to ask if we mind if the session is recorded.
Be prudent. Always ask “Do I presume correctly that there will be no ‘recording’ of any kind made of the meeting?” On the one hand, if you are told there will be a record made (audiotaping, by a stenographer, or otherwise), ask to be provided a copy. If your request is denied, you should ask that no record be made, because a one-sided record is worse than no record at all. On the other hand, if you are told no record is being made, you are on notice that it is very important to take careful notes. If this second request is also denied, you should make sure you have some way to make your own record of the meeting’s events. You might even decide, on this basis, to bring along an assistant or a friend to take careful notes. More on this below.
In one negotiation meeting we attended at the offices of a large law firm, opposing counsel had two junior attorneys furiously typing into their laptops a verbatim record of our discussions. Why use attorneys to do this? To make the notes what is called “attorney work product,” which is “privileged” in the law. Of course, when we requested a copy, we were denied. By finding out beforehand if any type of “record” will be made, you can object beforehand, or bring your own recording method into the room.
4. Prepare both (a) Your List of Goals, and (b) Your Best “Arguments” for Each: Simply put, you need to know what it is you would like to achieve by attending a negotiation meeting. It might be to obtain a guarantee of minimum first year compensation as part of a job offer. It might be a clear commitment to be named a Managing Partner within two years. It might be a promise of severance if terminated without “cause.” Whatever your goals are, you must be clear about them, because if you’re not clear yourself, you’re not going to be clear with the “other side.” And if you’re not clear with the other side, you won’t achieve your goals. No way.
Also, you need to know your best “argument” for each of your goals. Remember that it is not what you “want, need or deserve.” And it is not about “fairness.” Rather, your best “argument” for any workplace goal is that your goal is what you need in order to give your employer what he or she “wants, needs and deserves.” Your focus must be on the other guy’s or gal’s “wants, needs and deserves,” because that is what he or she is motivated by. As an illustration, “With that title, I will be able to get more meetings with prospects, and then bring in more business.”
5. Don’t be Afraid to Postpone or Adjourn the Meeting, If Necessary: The title says it all. If you are not feeling well, or are unprepared, or unsure of the agenda or your goals, don’t be hesitant to postpone the meeting, or even adjourn it after it has started. Especially “safe” reasons to postpone or adjourn a negotiation meeting include family matters and health concerns. Unless you are facing an intractable deadline, wait until you are entirely prepared for a negotiation meeting.
6. Keep Track of Future “Action Items”: As your negotiation meeting progresses, “action items” will arise. These are steps that need to be taken before progress can be made. Someone may have to gather more data before a decision can be made. Someone may require authorization to agree on a different point. Someone may have to check company policy to determine if a requested concession violates policy. Every “action item” represents an impediment to completing your negotiation, and thus, a hurdle to overcome before achieving your goals. Sometimes these are intentional “stalls,” as well.
Keep a separate, “rolling” list of (a) all action items, (b) who will be taking the necessary action, and (c) by what date it can be expected to be completed. “Open” action items are hurdles; “closed” action items are no longer hurdles. Keeping track of “open items,” so that you can later keep track of their elimination, is perhaps the most underappreciated and underutilized “rule” to ensuring successful negotiation meetings.
7. Write the Definitive “History”: What determines which army wins a war? The historians who write the history of the war. In negotiation much of what is “won” at the bargaining table is often lost in the paperwork. What was agreed to, what it meant, how it was to be implemented, and a hundred other issues of importance to a negotiation are often determined by who “writes the history.” It’s sad, and often disheartening, but it’s true.
About ten years ago I attended a settlement negotiation that lasted from 9:00 am to 10:00 pm. At 10:00 pm, I sat down with opposing counsel to prepare and sign a memorandum laying out the terms of the settlement. Using pads and pens, we completed a record of what was agreed to, which came to 9 pages, single spaced. Opposing counsel and I both signed it, and placed our initials on each page, just to be sure. I got home at 1:00 am, exhausted but satisfied that we had resolved the problem, which meant that the negotiation had been successful.
Two days later I received a typed document to sign, which was to be submitted to the Federal Judge presiding over the case for her approval. Sure enough, it was a very different “deal” than the one signed. When the Judge compared the two, she agreed: nothing was settled, and we were ordered to continue with trial. Fortunately, the matter was successfully renegotiated, but this time the Judge remained in the room to prevent any “revisionist history-making.”
After any negotiation meeting, you should prepare a summary of what was agreed to, what was not agreed to, what action items remained, who would complete the action items, and the agreement (or lack of agreement) on next steps. Share that with all parties, to determine if anyone has a different recollection. Chances are there will be no disagreements, but why take any chances at all? Workplace negotiations are too important to leave important points of agreement, and the points of disagreement, unfocused, unresolved, unclear, or “up in the air.”
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation of work and career issues requires that you carefully prepare for each negotiation meeting. Most people don’t do so, but instead try to “wing it,” believing “there is nothing you can do.” These seven “rules” identify, organize and clarify what it is you need to do to ensure success for yourself. But you have to use them; we can only be your guide.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
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© 2009 Alan L. Sklover. All rights reserved. Commercial use prohibited.