Chapter 7 What If They Won't Play?

(Use Negotiation Jujitsu)

Talking about interests, options, and standards may be a wise, efficient, and amicable game, but what if the other side won't play? While you try to discuss interests, they may state their position in unequivocal terms. You may be concerned with developing possible agreements to maximize the gains of both parties. They may be attacking your proposals, concerned only with maximizing their own gains. You may attack the problem on its merits; they may attack you. What can you do to turn them away from positions and toward the merits?

There are three basic approaches for focusing their attention on the merits. The first centres on what you can do. You yourself can concentrate on the merits, rather than on positions. This method, the subject of this book, is contagious; it holds open the prospect of success to those who will talk about interests, options, and criteria. In effect, you can change the game simply by starting to play a new one.

If this doesn't work and they continue to use positional bargaining, you can resort to a second strategy that focuses on what they may do. It counters the basic moves of positional bargaining in ways that direct their attention to the merits. This strategy we call negotiation jujitsu.

The third approach focuses on what a third party can do. If neither principled negotiation nor negotiation jujitsu gets them to play, consider including a third party trained to focus the discussion on interests, options, and criteria. Perhaps the most effective tool a third party can use in such an effort is the one-text mediation procedure.

The first approach—principled negotiation—has already been discussed. Negotiation jujitsu and the one-text procedure are explained in this chapter. The chapter ends with a dialogue based on an actual landlord-tenant negotiation that illustrates in detail how you might persuade an unwilling party to play, using a combination of principled negotiation and negotiation jujitsu.

Negotiation jujitsu

If the other side announces a firm position, you may be tempted to criticize and reject it. If they criticize your proposal, you may be tempted to defend it and dig yourself in. If they attack you, you may be tempted to defend yourself and counterattack. In short, if they push you hard, you will tend to push back.

Yet if you do, you will end up playing the positional bargaining game. Rejecting their position only locks them in. Defending your proposal only locks you in. And defending yourself side-tracks the negotiation into a clash of personalities. You will find yourself in a vicious cycle of attack and defence, and you will waste a lot of time and energy in useless pushing and pulling.

If pushing back does not work, what does? How can you prevent the cycle of action and reaction? Do not push back. When they assert their positions, do not reject them. When they attack your ideas, don't defend them. When they attack you, don't counterattack. Break the vicious cycle by refusing to react. Instead of pushing back, sidestep their attack and deflect it against the problem. As in the Oriental martial arts of judo and jujitsu, avoid pitting your strength against theirs directly; instead, use your skill to step aside and turn their strength to your ends. Rather than resisting their force, channel it into exploring interests, inventing options for mutual gain, and searching for independent standards.

How does “negotiation jujitsu” work in practice? How do you sidestep their attack and deflect it against the problem?

Typically their “attack” will consist of three maneuvres: asserting their position forcefully, attacking your ideas, and attacking you. Let's consider how a principled negotiator can deal with each of these.

Don't attack their position, look behind it. When the other side sets forth their position, neither reject it nor accept it. Treat it as one possible option. Look for the interests behind it, seek out the principles that it reflects, and think about ways to improve it.

Let's say you represent an association of teachers striking for higher pay and for seniority as the only criterion in layoffs. The school board has proposed a $2,000 raise across the board plus retention of the right to decide unilaterally who gets laid off. Mine their position for the interests that lie below the surface. “What exactly are the budget trade-offs involved in raising the salary schedule more than $2,000?” “Why do you feel a need to maintain complete control over layoffs?”

Assume every position they take is a genuine attempt to address the basic concerns of each side; ask them how they think it addresses the problem at hand. Treat their position as one option and objectively examine the extent to which it meets the interests of each party, or might be improved to do so. “How will a $2,000 across-the-board increase keep our schools' salaries competitive with others in the area and thus assure that the students will have high-quality teachers?” “How could you satisfy the teachers that your evaluation procedure for layoffs would be fair? We believe that you personally would be fair, but what would happen if you left? How can we leave our livelihoods and our families' wellbeing up to a potentially arbitrary decision?”

Seek out and discuss the principles underlying the other side's positions. “What is the theory that makes $2,000 a fair salary increase? Is it based on what other schools pay or what others with comparable qualifications make?” “Do you believe that the town's least experienced teachers should be laid off first or the most experienced—who, of course, have higher salaries?”

To direct their attention toward improving the options on the table, discuss with them hypothetically what would happen if one of their positions was accepted. In 1970, an American lawyer had a chance to interview President Gamal Abdel Nasser of Egypt on the subject of the Arab-Israeli conflict. He asked Nasser, “What do you want [Israel's Prime Minister] Golda Meir to do?”

Nasser replied, “Withdraw!”

“Withdraw?” the lawyer asked.

“Withdraw from every inch of Arab territory!”

“Without a deal? With nothing from you?” the American asked incredulously.

“Nothing. It's our territory. She should promise to withdraw,” Nasser replied.

The American asked, “What would happen to Golda Meir if tomorrow morning she appeared on Israeli radio and television and said, ‘On behalf of the people of Israel, I hereby promise to withdraw from every inch of territory occupied in 1967: the Sinai Peninsula, the Gaza Strip, the West Bank, Jerusalem, the Golan Heights. And I want you to know, I have no commitment of any kind from any Arab whatsoever.'”

Nasser burst out laughing. “Oh, would she have trouble at home!”

Understanding what an unrealistic option Egypt had been offering Israel may have contributed to Nasser's stated willingness later that day to accept a cease-fire in the ongoing hostilities.

Don't defend your ideas, invite criticism and advice. A lot of time in negotiation is spent criticizing. Rather than resisting the other side's criticism, invite it. Instead of asking them to accept or reject an idea, ask them what's wrong with it. “What concerns of yours would this salary proposal fail to take into account?” Examine their negative judgments to find out their underlying interests and to improve your ideas from their point of view. Rework your ideas in light of what you learn from them, and thus turn criticism from an obstacle in the process of working toward agreement into an essential ingredient of that process. “If I understand you, you're saying you can't afford to give 750 teachers more than a $2,000 across-the-board raise. What if we accept that with the stipulation that any money saved by hiring fewer than 750 full-time teachers will be distributed as a monthly bonus to those teachers who are working?”

Another way to channel criticism in a constructive direction is to turn the situation around and ask for their advice. Ask them what they would do if they were in your position. “If your jobs were at stake, what would you do? Our members are feeling so insecure about their jobs and frustrated by their shrinking dollars they're talking about inviting a militant union in to represent them. If you were leading this association, how would you act?” Thus, you lead them to confront your half of the problem. In doing so, they may be able to invent a solution that meets your concerns. “Part of the problem here seems to be that the teachers feel no one's listening. Would it help to have regular sessions at which teachers could meet with the school board?”

Recast an attack on you as an attack on the problem. When the other side attacks you personally—as frequently happens—resist the temptation to defend yourself or to attack them. Instead, sit back and allow them to let off steam. Listen to them, show you understand what they are saying, and when they have finished, recast their attack on you as an attack on the problem. “When you say that a strike shows we don't care about the children, I hear your concern about the children's education. I want you to know that we share this concern: they are our children and our students. We want the strike to end so we can go back to educating them. What can we both do now to reach an agreement as quickly as possible?”

Ask questions and pause. Those engaged in negotiation jujitsu use two key tools. The first is to use questions instead of statements. Statements generate resistance, whereas questions generate answers. Questions allow the other side to get their points across and let you understand them. They pose challenges and can be used to lead the other side to confront the problem. Questions offer them no target to strike at, no position to attack. Questions do not criticize, they educate. “Do you think it would be better to have teachers cooperating in a process they felt they were participating in, or actively resisting one they felt was imposed on them and failed to take their concerns into account?”

Silence is one of your best weapons. Use it. If they have made an unreasonable proposal or an attack you regard as unjustified, the best thing to do may be to sit there and not say a word.

If you have asked an honest question to which they have provided an insufficient answer, just wait. People tend to feel uncomfortable with silence, particularly if they have doubts about the merits of something they have said. For example, if a teacher's representative asks, “Why shouldn't teachers have a say in layoff policy?” the school board chairman might find himself at a loss: “Layoffs are a purely administrative matter. . . . Well, of course teachers have an interest in layoff policy, but they really aren't the best qualified to know who's a good teacher. . . . Uh, what I mean is . . . .”

Silence often creates the impression of a stalemate that the other side will feel impelled to break by answering your question or coming up with a new suggestion. When you ask questions, pause. Don't take them off the hook by going right on with another question or some comment of your own. Some of the most effective negotiating you will ever do is when you are not talking.

Consider the one-text procedure

You will probably call in a third party only if your own efforts to shift the game from positional bargaining to principled negotiation have failed. The problem you face may be illustrated by a simple story of a negotiation between a husband and wife who plan to build a new house.

The wife is thinking of a two-story house with a chimney and a bay window. The husband is thinking of a modern one-story ranch-style house with a den and a garage with a lot of storage space. In the process of negotiating, each asks the other a number of questions, like “What are your views on the living room?” and “Do you really insist on having it your way?” Through answering such questions, two separate plans become more and more fixed. They each ask an architect to prepare first a sketch and then more detailed plans, ever more firmly digging themselves into their respective positions. In response to the wife's demand for some flexibility, the husband agrees to reduce the length of the garage by one foot. In response to his insistence on a concession, the wife agrees to give up a back porch, which she says she had always wanted but which did not even appear on her plan. Each argues in support of one plan and against the other. In the process, feelings are hurt and communication becomes difficult. Neither side wants to make a concession, since it will likely lead only to requests for more concessions.

This is a classic case of positional bargaining. If you cannot change the process to one of seeking a solution on the merits, perhaps a third party can. More easily than one of those directly involved, a mediator can separate the people from the problem and direct the discussion to interests and options. Further, he or she can often suggest some impartial basis for resolving differences. A third party can also separate inventing from decision-making, reduce the number of decisions required to reach agreement, and help the parties know what they will get when they do decide. One process designed to enable a third party to do all this is known as the one-text procedure.

In the house-designing negotiation between husband and wife, an independent architect is called in and shown the latest plans reflecting the present positions of the husband and the wife. Not all third parties will behave wisely. One architect, for example, might ask the parties for clarification of their positions, press them for a long series of concessions, and make them even more emotionally attached to their particular solutions. But an architect using the one-text procedure would behave differently. Rather than ask about their positions he asks about their interests: not how big a bay window the wife wants, but why she wants it. “Is it for morning sun or afternoon sun? Is it to look out or look in?” He would ask the husband, “Why do you want a garage? What things do you need to store? What do you expect to do in your den? Read? Look at television? Entertain friends? When will you use the den? During the day? Weekends? Evenings?” And so forth.

The architect makes clear he is not asking either spouse to give up a position. Rather, he is exploring the possibility that he might be able to make a recommendation to them—but even that is uncertain. At this stage he is just trying to learn all he can about their needs and interests.

Afterward, the architect develops a list of interests and needs of the two spouses (“morning sun, open fireplace, comfortable place to read, room for a wood shop, storage for snow-blower and medium-size car,” and so on). He asks each spouse in turn to criticize the list and suggest improvements on it. It is hard to make concessions, but it is easy to criticize.

A few days later the architect returns with a rough floor plan. “Personally, I am dissatisfied with it, but before working on it further I thought I would get your criticisms. What would be wrong with something like this?” The husband might say, “What's wrong with it? Well, for one thing, the bathroom is too far from the bedroom. I don't see enough room for my books. And where would overnight guests sleep?” The wife is similarly asked for her criticism of the first sketch.

A short time later the architect comes back with a second sketch, again asking for criticism. “I've tried to deal with the bathroom problem and the book problem, and also with the idea of using the den as a spare bedroom and adding more storage space. What do you think about this?” As the plan takes shape, each spouse will tend to raise those issues most important to him or to her, not trivial details. Without conceding anything, the wife, for example, will want to make sure that the architect fully understands her major needs. No one's ego, not even that of the architect, is committed to any draft. Inventing the best possible reconciliation of their interests within their financial constraints is separated from making decisions and is free of the fear of making an overhasty commitment. Husband and wife do not have to abandon their positions, but they now sit side by side, at least figuratively, jointly critiquing the plans as they take shape and helping the architect prepare a recommendation he may later present to them.

And so it goes, through a third plan, a fourth, and a fifth. Finally, when he feels he can improve it no further, the architect says, “This is the best I can do. I have tried to reconcile your various interests as best I could. Many of the issues I have resolved using standard architectural and engineering solutions, precedent, and the best professional judgment I can bring to bear. Here it is. I recommend you accept this plan.”

Each spouse now has only one decision to make: yes or no. In making their decisions they know exactly what they are going to get. And a yes answer can be made contingent on the other side's also saying yes. The one-text procedure not only shifts the game away from positional bargaining, it greatly simplifies the process both of inventing options and of deciding jointly on one.

In other negotiations, who could play the role of the architect? You could invite a third party in to mediate. Or, in negotiations involving more than two parties, a natural third party may be a participant whose interests on this issue lie more in effecting an agreement than in affecting the particular terms.

In many negotiations that someone may be you. For instance, you may be a sales representative for a plastics plant negotiating a large order with an industrial customer who makes plastic bottles. The customer may want a special kind of plastic made up, but the plant you represent may be reluctant to do the retooling needed for the order. Your commission depends more on effecting an agreement between your customer and your production people than on affecting the terms. Or you may be a legislative assistant for a senator who is more concerned with getting a certain appropriations bill passed than with whether the appropriation is ten million dollars or eleven. Or you may be a manager trying to decide an issue on which each of your two subordinates favors a different course of action; you care more about making a decision both can live with than about which alternative is chosen. In each of these cases, even though you are an active participant, it may be in your best interest to behave as a mediator would and to use the one-text procedure. Mediate your own dispute.

Perhaps the most famous use of the one-text procedure was by the United States at the Camp David summit in September 1978 when mediating between Egypt and Israel. The United States listened to both sides, prepared a draft to which no one was committed, asked for criticism, and improved the draft again and again until the mediators felt they could improve it no further. After thirteen days and some twenty-three drafts, the United States had a text it was prepared to recommend. When President Jimmy Carter finally did recommend it, Israel and Egypt accepted. As a mechanical technique for limiting the number of decisions, reducing the uncertainty of each decision, and preventing the parties from getting increasingly locked into their positions, it worked remarkably well.

The one-text procedure is a great help for two-party negotiations involving a mediator. It is almost essential for large multilateral negotiations. One hundred and fifty nations, for example, cannot constructively discuss a hundred and fifty different proposals. Nor can they make concessions contingent upon mutual concessions by everybody else. Combining parts of many different proposals is also unlikely to produce the best answer, as illustrated by the old quip that a camel is a horse designed by a committee. Multiple parties need some way to simplify the process of decision-making without diminishing the quality of the outcome. The one-text procedure serves that purpose.

The Law of the Sea negotiations started making significant progress only when they began using a prototype of the one-text procedure created by veteran diplomat Tommy Koh of Singapore. The negotiators were divided into groups to work on different issues with appointed chairpersons tabling drafts, soliciting criticism, and revising drafts within each group. A similar process was used for parts of the South African constitutional negotiations that ultimately ended apartheid and created an inclusive multilateral democracy.[3]

Note that in most situations you do not have to get anyone's consent to start using the one-text procedure. Simply prepare a draft and ask for criticism. Again, you can change the game simply by starting to play the new one. Even if the other side is not willing to talk to you directly (or vice versa), a third party can take a draft around.

Getting them to play: The case of Jones Realty and Frank Turnbull

The following real-life example of a negotiation between a landlord and tenant should give you a feel for how you might deal with a party who is reluctant to engage in principled negotiation. It illustrates what it means to change the game by starting to play a new one.

The case in brief. Frank Turnbull rented an apartment in March from Jones Realty for $1,200 a month. In July, when he and his roommate, Paul, wanted to move out, Turnbull learned that the apartment was under rent control. The maximum legal rent was $932 a month—$268 less than he had been paying.

Disturbed that he had been overcharged, Turnbull called on Mrs. Jones of Jones Realty to discuss the problem. At first, Mrs. Jones was unreceptive and hostile. She claimed to be right and accused Turnbull of ingratitude and blackmail. After several long negotiating sessions, however, Mrs. Jones agreed to reimburse Turnbull and his roommate. Her tone in the end became friendlier and apologetic.

Throughout, Turnbull used the method of principled negotiation. Presented below is a selection of the exchanges that took place during the negotiation. Each exchange is headed by a stock phrase that a principled negotiator might use in any similar situation. Following each exchange is an analysis of the theory that lies behind it and its impact.

“Please correct me if I'm wrong”

Turnbull: Mrs. Jones, I've just learned—please correct me if I'm wrong—that our apartment's under rent control. We've been told that the legal maximum rent is $932 a month. Have we been misinformed?

Analysis. The essence of principled negotiation lies in remaining open to persuasion by objective facts and principles. By cautiously treating his view of the objective facts as possibly inaccurate and asking Mrs. Jones to correct it, Turnbull establishes a dialogue based on reason. He invites her to participate by either agreeing with the facts as presented or setting them right. This approach makes them two colleagues trying to establish the facts. The confrontation is defused. If Turnbull simply asserted his views of the facts as facts, Mrs. Jones would feel disrespected, threatened, and defensive. She might deny the facts, especially if she thought any aspect of Turnbull's view was inaccurate or incomplete. The negotiation would not start off constructively.

If Turnbull is genuinely mistaken, asking for corrections beforehand will make them easier to accept. To tell Mrs. Jones that these are the facts, only to learn he is wrong, would make him lose face. Worse yet, she would then doubt all the more anything else he says, making it difficult to negotiate.

Making yourself open to correction and persuasion is a pillar in the strategy of principled negotiation. You can convince the other side to be open to the principles and objective standards you suggest only if you show yourself open to the ones they suggest.

“We appreciate what you've done for us”

Turnbull: Paul and I understand you were doing a personal favor by renting us this apartment. You were very kind to put in the time and effort, and we appreciate it.

Analysis. Giving personal support to the person on the other side is crucial to disentangling the people from the problem—separating relationship issues from the substantive merits. By expressing his appreciation of Mrs. Jones's good deeds, Turnbull in effect says, “We have nothing against you personally. We think you're a generous person.” He puts himself on her side. He defuses any threat she may feel to her self-image.

Praise and support, moreover, imply that the person will continue to deserve them. After being praised, Mrs. Jones now has a slight emotional investment in Turnbull's approval of her. She has something to lose and as a result may act more conciliatory.

“Our concern is fairness”

Turnbull: We want to know that we didn't pay any more than we should have. When we're persuaded that the rent paid measures up fairly to the time spent in the apartment, we'll call it even and move out.

Analysis. Turnbull takes a basic stand on principle and announces his intention to stick to it; he must be persuaded on the basis of principle. At the same time, he lets Mrs. Jones know he is open to persuasion along the lines of this principle. She is thus left with little choice but to reason with him in pursuit of her interests.

Turnbull does not take a righteous stand on principle backed up with whatever power he possesses. Not only are his ends principled but also the means he contemplates. His ends, he claims, are a fair balance between rent paid and time spent. If convinced the rent paid is just right for the time spent, he will move out. If the rent paid is excessive, it is only fair that he remain in the apartment until the rent and the time spent are in balance.

“We would like to settle this on the basis of independent standards, not of who can do what to whom”

Mrs. Jones: It's funny you should mention fairness, because what you're really saying is that you and Paul just want money, and that you're going to take advantage of your still being in the apartment to try and get it from us. That really makes me angry. If I had my way, you and Paul would be out of the apartment today.

Turnbull (barely controlling his anger): I must not be making myself clear. Of course it would be nice if Paul and I got some money. Of course we could try and stay here in the apartment until you got us evicted. But that's not the point, Mrs. Jones.

More important to us than making a few dollars here or there is the feeling of being treated fairly. No one likes to feel cheated. And if we made this a matter of who's got the power and refused to move, we'd have to go to court, waste a lot of time and money, and end up with a big headache. You would too. Who wants that?

No, Mrs. Jones, we want to handle this problem fairly on the basis of some independent standard, rather than who can do what to whom.

Analysis. Mrs. Jones challenges the idea of negotiating on the basis of principle, calling it a charade. It's a matter of will and her will is to throw out Turnbull and his roommate today.

At this Turnbull almost loses his temper—and with it his control over the negotiation. He feels like counterattacking: “I'd like to see you try to get us out. We'll go to court. We'll get your license revoked.” The negotiation would then break off, and Turnbull would lose a lot of time, effort, and peace of mind. But instead of reacting, Turnbull keeps his temper and brings the negotiation back to the merits. This is a good example of negotiation jujitsu. He deflects Mrs. Jones's attack by taking responsibility for her mistaken perceptions, and he tries to persuade her of his sincere interest in principle. He does not hide either his selfish interests or his leverage over her; on the contrary, he makes both explicit. Once they are acknowledged, he can distinguish them from the merits and they can cease being an issue.

Turnbull also tries to give the game of principled negotiation some weight by telling Mrs. Jones this is his basic code—the way he always plays. He attributes this not to high-minded motives—which are always suspect—but to simple self-interest.

“Trust is a separate Issue”

Mrs. Jones: You don't trust me? After all I've done for you?

Turnbull: Mrs. Jones, we appreciate all you've done for us. For us, this is not a matter of trust. The issue is the principle: Did we pay more than we should have? What considerations do you think we should take into account in deciding this?

Analysis. Mrs. Jones tries to manipulate Turnbull into a corner. Either he pursues the point and looks untrusting, or he looks trusting and gives in. Turnbull slips out of the corner, however, by expressing his gratitude once more and then defining the question of trust as irrelevant. Turnbull at once reaffirms his appreciation of Mrs. Jones while he remains firm on the principle. In doing so, he avoids connecting the two thoughts with “but,” implicitly using “and” instead. “But,” sometimes called the “great eraser,” has a tendency to negate the first thing you say by implying that only one of two statements can be true, making it either/or. “And” underscores the more complex reality that both thoughts can be true at the same time. It helps ensure both that Mrs. Jones feels heard and appreciated and that she can't frame Turnbull as wrongly untrusting.

Moreover, instead of just shunting aside the question of trust, Turnbull actively directs the discussion back to principle by asking Mrs. Jones what considerations she thinks are relevant.

Turnbull sticks to principle without blaming Mrs. Jones. He never calls her dishonest. He does not ask, “Did you take advantage of us?” but inquires more impersonally, “Did we pay more than we should have?” Even if he does not trust her, it would be a poor strategy to tell her so. She would probably become defensive and angry and might either withdraw into a rigid position or break off the negotiation altogether.

It helps to have stock phrases like “It's not a question of trust” to turn aside ploys like Mrs. Jones's plea for trust.

“Could I ask you a few questions to see whether my facts are right?”

Turnbull: Could I ask you a few questions to see whether the facts I've been given are right?

Is the apartment really under rent control?

Is the legal maximum rent really $932?

Paul asked me whether this makes us parties to a violation of the law.

Did someone inform Paul at the time he signed the lease that the apartment was under rent control, and that the legal maximum was $268 lower than the rent he agreed to?

Analysis. Statements of fact can feel lecturing or threatening. Whenever you can, ask a question instead.

Turnbull might have declared, “The legal rent is $932. You broke the law. What's worse, you involved us in breaking the law without telling us so.” Mrs. Jones would probably have reacted strongly to these statements, dismissing them as verbal attacks intended to score points.

Phrasing each piece of information as a question allows Mrs. Jones to participate, listen to the information, evaluate it, and either accept or correct it. Turnbull communicates the same information to her but in a less provocative manner. He reduces the heat still further by attributing a particularly pointed question to his absent roommate.

In effect, Turnbull induces Mrs. Jones to help lay a foundation of agreed-upon facts upon which a principled solution can be built.

“What's the principle behind your action?”

Turnbull: I'm not clear why you charged us $1,200 a month. What were your reasons for charging that much?

Analysis. A principled negotiator neither accepts nor rejects the other side's positions. To keep the dialogue focused on the merits, Turnbull questions Mrs. Jones about the reasons for her position. He does not ask whether there were any reasons. He assumes there are good reasons. This flattering assumption leads the other side to search for reasons even if there are none, thus keeping the negotiation on the basis of principle.

“Let me see if I understand what you're saying”

Turnbull: Let me see if I understand what you're saying, Mrs. Jones. If I've understood you correctly, you think the rent we paid is fair because you made a lot of repairs and improvements to the apartment since the last rent control evaluation. It wasn't worth your while to ask the Rent Control Board for an increase for the few months you rented the place to us.

In fact, you rented it only as a favor to Paul. And now you're concerned that we may take unfair advantage of you and try to get money from you as the price for moving out. Is there something I've missed or misunderstood?

Analysis. Principled negotiation requires good communication. Before responding to Mrs. Jones's arguments, Turnbull restates to her in positive terms what he has heard to make sure he has indeed understood her.

Once she feels understood, she can relax and discuss the problem constructively. She can't dismiss his arguments on the grounds that they do not take into account what she knows. She is more likely to listen now and be more receptive. In trying to sum up her point of view, Turnbull establishes a cooperative game in which both are making sure he understands the facts.

“Let me get back to you”

Turnbull: Now that I think I understand your point of view, let me talk with my roommate and explain it to him. Can I get back to you tomorrow sometime?

Analysis. A good negotiator rarely makes an important decision on the spot. The psychological pressure to be nice and to give in is too great. A little time and distance help disentangle the people from the problem.

A good negotiator comes to the table with a credible reason in his pocket for leaving when he wants. Such a reason should not indicate passivity or inability to make a decision. Here, Turnbull sounds as if he knows exactly what he is doing, and he arranges to resume the negotiation at a given time. He shows not only decisiveness but also control over the course of the negotiation.

Once away from the table, Turnbull can check on points of information and consult his “constituency,” Paul. He can think about the decision and make sure he has not lost perspective.

Too much time at the table may wear down one's commitment to principled negotiation. Returning to the table with renewed resolve, Turnbull can be soft on the person without being soft on the problem.

“Let me show you where I have trouble following some of your reasoning”

Turnbull: Let me show you where I have trouble following some of your reasons for the extra $268 a month. One reason was the repairs and improvements on the apartment. The Rent Control Examiner said it would take about $30,000 in improvements to justify an increase of $268 a month. How much money was spent on improvements?

I must admit it didn't seem like $30,000 worth to Paul and me. The hole in the linoleum you promised to repair was never fixed, neither was the hole in the living room floor. The toilet broke down repeatedly. These are just some of the defects and malfunctions we experienced.

Analysis. In principled negotiation you present your reasons first before offering a proposal. If principles come afterward, they appear not as the objective criteria that any proposal should satisfy but as mere justifications for an arbitrary position.

For Turnbull to explain his reasons first shows his openness to persuasion and his awareness of the need to convince Mrs. Jones. If he announced his proposal first, Mrs. Jones probably would not bother to listen to the reasons that followed. Her mind would be elsewhere, considering what objections and counterproposals she could make.

Turnbull has also sought out objective standards to support his concerns. He has called the Rent Control Board to quantify a correlation between improvements and a $268 per month rent increase. In preparing for your negotiation, it helps to think about what standards would be useful, who might be able to provide them, and how to frame your questions to elicit the most relevant information.

“One fair solution might be . . .”

Turnbull: Given all the considerations we've discussed, one fair solution seems to be for Paul and me to be reimbursed for the amount of rent we paid in excess of the legal maximum. Does that sound fair to you?

Analysis. Turnbull presents a proposal not as his, but as a fair option that deserves their joint consideration. He does not claim it is the only fair solution, but one fair solution. He is specific without digging himself into a position and inviting rejection.

“If we agree . . . if we disagree . . . ”

Turnbull: If you and I could reach agreement now, Paul and I would move out immediately. If we can't reach an agreement, the hearing examiner at the Rent Control Board suggested that we stay in the apartment and withhold rent and/or sue you for reimbursement, treble damages, and legal fees. Paul and I are extremely reluctant to take either of these courses. We feel confident we can settle this matter fairly with you to your satisfaction and ours.

Analysis. Turnbull is trying to make it easy for Mrs. Jones to say yes to his proposal. So he starts by making it clear that all it takes for the problem to go away is Mrs. Jones's agreement.

The trickiest part of the message to communicate is the alternative if no agreement is reached. How can Turnbull get this across—he wants her to take it into account in her decision—without upsetting the negotiations? He bases the alternative on objective principle by attributing it to a legal authority—the hearing examiner. He distances himself personally from the suggestion. Nor does he say he will definitely take action. Instead, he leaves it as a possibility and emphasizes his reluctance to do anything drastic. Finally, he closes by affirming his confidence that a mutually satisfactory agreement will be reached.

Turnbull's BATNA—his best alternative to a negotiated agreement—is probably neither staying in the apartment nor going to court. He and Paul have already rented another apartment and would greatly prefer to move out now. A lawsuit would be difficult, given their busy schedules, and even if they won, they might never be able to collect. Turnbull's BATNA is probably just to move out and stop worrying about the $1,340 overpayment. Since his BATNA is probably less attractive than Mrs. Jones thinks, Turnbull does not disclose it.

“We'd be happy to see if we can leave when it's most convenient for you”

Mrs. Jones: When do you plan to move out?

Turnbull: As long as we've agreed on the appropriate rent for our time in the apartment, we'd be happy to see if we can leave when it's most convenient for you. When would you prefer?

Analysis. Sensing the possibility of a joint gain, Turnbull indicates his willingness to discuss ways of meeting Mrs. Jones's interest. As it turns out, Turnbull and Mrs. Jones have a shared interest in Turnbull moving out as soon as possible.

Incorporating her interests into the agreement not only gives her more of a stake in it but also allows Mrs. Jones to save face. On the one hand, she can feel good about agreeing to a fair solution even though it costs her money. On the other, she can say that she got the tenants out of the apartment early.

“It's been a pleasure dealing with you”

Turnbull: Paul and I do appreciate, Mrs. Jones, all that you've done for us, and I'm pleased that we've settled this last problem fairly and amicably.

Mrs. Jones: Thank you, Mr. Turnbull. Have a nice summer.

Analysis. Turnbull ends the negotiation on a final conciliatory note toward Mrs. Jones. Because they successfully dealt with the problem independently of the relationship, neither party feels cheated or angry, and neither is likely to try to sabotage or ignore their agreement. A working relationship is maintained for the future.

Whether you use principled negotiation and negotiation jujitsu, as Frank Turnbull did, or a third party with the one-text procedure, the conclusion remains the same: you can usually get the other side to play the game of principled negotiation with you, even if at first they appear unwilling.