Preparing for Negotiation On the Fly


Berton Lee Lamb and Susan K. Driver

We often read the advice that we should be well prepared for negotiation. This is sometimes directed at one-on-one negotiations. Buying a car is an example. “Do your research beforehand” they advise. This sounds straightforward but even a simple negotiation can become quite complicated and time-consuming. You are not sure how much preparation is enough.

The problem of preparing for a multi-party negotiation can be even more daunting. It may actually be impossible to know when we have sufficiently prepared! Yet trying to be overly comprehensive may reduce your effectiveness. 

Although there are a few basic lessons about multi-party negotiations, preparation is usually one of the main recommendations. In reality, we often find ourselves getting ready for negotiations “on the fly.” We simply don’t have the time or resources to carry out a comprehensive preparation.

Here is a guide for preparing to negotiate “on the fly:”

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American Negotiating Style: Part 4

I recently found a blog post that summarizes some useful negotiation lessons. The blog is entitled Your “Tools for Success in the United States.”

The five-part guidance for the first-time negotiator in the Unites States is informative about what to watch out for and what not to do. I have listed the guidelines along with comments from people with experience in negotiating with Americans. I have also added a section on “Preparation.”

  • Sense of Urgency–Quick results


“It is important to be clear and direct when negotiating with Americans.” (Sherk)

“Turkish people, like many Asian cultures, may not explicitly state what they really want to say but expect people to understand immediately. This is why Turkish people in negotiations with Americans have to be clear about what they say. When Americans say “No” they mean it as an absolute answer. However, some Turkish people, when they are asked a question, if they answer “No” they might expect an American to ask again. But Americans do not ask the second time. They accept No as No. Americans give importance to punctuality. Thus, you have to be on time for appointments and meetings.” (Conka)

“Be prepared for the clash between the long- and short-term outlook.” (Mehta)

“America is a large diverse country with many regional sub-cultures. Although Americans are generally friendly, it is sometimes important to learn if your opposite number is someone who wishes to be very direct.” (Sherk)

  • Informality–


“In the informal negotiations I have observed–especially between tourists and shopkeepers–Americans like to feel special, like VIPs. When they are treated this way they seem to be more open to doing business (and spending money) because they feel others have recognized their importance and can be trusted.” (Alebouni)

“The most important thing to remember about International negotiations is that personal relationships are paramount.” (Mehta)

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American Negotiating Style: Part 2

How do others see us? This is a great question and it is especially important to understand how we are viewed as negotiators. (Click here to read Part 1)

Recently, I was teaching the negotiation segment of a course at the Office of Personnel Management’s Eastern Executive Seminar Center. About half the students were American and half were from the government of India. We started talking about national negotiating styles, so I asked “What do you see as the American negotiation style?”  The first answer from the Indian government personnel was “Arrogant!”

Wow! That was a surprise but it put me in mind if a report from the U.S. Institute for Peace (USIP). Continue reading

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NGA Sponsors Lamb Prize in Political Science

 The Bert & Phyllis Lamb Prize in Political Science

Negotiation Guidance Associates is pleased to announce the Bert and Phyllis Lamb Prize in Political Science.

The Lamb Prize has been awarded annually since 2014.

The Lamb-Prize:

  •  Is a $1,000 cash award.
  • Offers nation-wide publicity to undergraduate students who demonstrate an aptitude for innovation in the field of Political Science.
  • Promotes academic curiosity and new ideas geared to good government.

The Selection Committee for the Lamb Prize is chaired by

Donna Lybecker, Ph.D. Department of Political Science, Idaho State University.

Visit to learn more.

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Empathy as One Cornerstone of Mediation


Daniel Merz, Ph.D.

Generally speaking, empathy is the ability to put yourself in someone else’s shoes for the purpose of valuing a person’s perspective and avoiding shame and judgment.  It’s the ability to identify what someone is thinking or feeling and respond to their thoughts or feelings with appropriate emotion. In mediation the use of empathic statements conveys to clients that the mediator has a respectful understanding of their thoughts and feelings (Gordon, 2015).

When dialog in the mediation process becomes stuck or unproductive, the use of empathic skills can lead to getting the conversation back on a more productive track. Daniel Goleman (1995) contends that empathy takes three forms, Cognitive, Emotional, and Compassionate. Cognitive empathy in Goleman’s view is the ability to understand another person’s way of processing information or thoughts. It is also referred to as perspective taking. A second form of empathy is what Goleman refers to as Emotional empathy. This is the ability to place yourself in another person’s shoes and identify with their feelings or emotions. Affective intimacy is another way of describing emotional intimacy. With Emotional empathy the listener is giving attention to the feelings being expressed behind a person’s verbal statements. With Compassionate empathy the listener is being moved to offer some form of help or support when she/he feels moved by the feelings and emotions being expressed by an individual. 

Example Dialogue

The use of empathy will sustain dialogue during conflict because it has a good chance of keeping parties engaged in the process (Eddy, 2017). On occasion a mediator will encounter parties that engage in high conflict behavior. There can a noticeable atmosphere of tension in the room. Empathic skills used properly can reduce tension and keep parties involved in the mediation process. 

Here are two examples of possible mediator statements:

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Digital Negotiating: Video-conferences

Negotiating by video-conference, such as Zoom or MS Teams, has recently become more common.  When reviewing the on-line literature on this subject it became apparent that there is less research available about how to conduct a video negotiation. But there are a few lessons that might be helpful:

  1. Video-conference negotiations are more similar to telephone negotiations than they are to email negotiations.
  2. In a video conference you are setting the stage and framing the image you want to convey. For this reason it is important to prepare the scene.
  3. Marshall Bright observed that the most important thing you can do to help video-conferences succeed is to figure out your strategy before you start.
  4. Technical difficulties are to be expected; practice using the conference apps before your negotiation begins. Don’t let glitches throw you off balance.
  5. Video increases the chances to send unwanted signals.

Helpful Hints:

These folks give some great basic Zoom advice. 

How to look your best on a video call.


Marshall Bright on How to Negotiate via Zoom

Katherine Shonk writes about On-line Negotiating

Marty Latz Explains the Benefits and Pitfalls of Zoom Negotiations

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Digital Negotiating: Email

We are often asked about negotiating using email. The questions are something like these: “Is it okay to negotiate through email?” “What is the best way to negotiate by email?” or “What are the difficulties in email negotiations?”

Listed below are three links to discussions about email negotiations. Although it is best to  read these essays yourself, here are some takeaways:

  1. Email negotiations tend to be more “hardball” so it is difficult to establish a collaborative atmosphere.
  2. It is common in email negotiation for misunderstandings to develop.
  3. Status and other equality factors are often neutralized in email negotiations.

The Links:

Watershed Associates on Email Negotiation

Harvard’s Project on Negotiation about the Pitfalls of Email Negotiation

Jack Nasher in “Forbes” on the Effectiveness of Email Negotiation

There are many articles about this subject on-line.  Good advice is available.

Here are three actions to consider when planning for and conducting email negotiations: Maintain civility, try to have some face-to-face sessions, make sure your internal discussions are off-line, and nail down agreements in writing.


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Mediation With Difficult Individuals

by Daniel R. Merz, Ph.D*

One of the more difficult personalities to face in mediation is when one of the parties exhibits an egotistical, armored, and intimidating personality. These individuals will often display additional character traits such as bullying, grandiosity, vanity, and a lack of empathy. Initially they can be charming and self-confident yet hidden behind this is a cold and calculating attitude. They may resist your best efforts. If you are not careful about how you manage the mediation process, this person will eventually identify you as an enemy to be defeated.

In a highly stressful mediation that involves a difficult personality, you will likely have a better  chance of success if you can avoid certain approaches or reactions. 

Avoid power struggles. You will be up against someone who has spent most of their lifetime getting their way. They use a win-at-all-costs mentality when they encounter resistance to what they want. Related to this self-centered attitude is the use of mental and emotional intimidation. In the face of this you need to know your weak spots. Because these areas of your personhood will be the first place the difficult person will strike. 

Resist the desire to retaliate or defend yourself. Assertive responses by the mediator to intimidation are often experienced as an assault on the person’s sense of specialness, grandiosity, and entitlement. The person using intimidation is probably experiencing you as a threat. See if you can identify and explore his or her feelings behind the defensive behavior. Give the person room to talk about the feelings behind his or her attack. Then you will be in a better place to reassure the individual that you are not there to judge or threaten him or her. In as much detail as you can, clarify your role as a mediator. Ask the person to describe his or her goals for the mediation. Continue reading

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The Term Sheet: What Is It and How Do We Use It?


Sarah Klahn,* David Belcher,** and Berton Lee Lamb

We often encounter “term sheets” in multi-party negotiations. Recently, we were involved in a negotiation that was going pretty well. The parties had agreed on a few things and seemed to trust one another. During a session, one of the attorneys suggested, “We seem to be making good progress. What would everyone think if we tried to develop a term sheet?” The attorneys in the room brightened up, but the other professionals looked puzzled. The discussion that followed made it clear that we needed to define our terms: What is a term sheet?

A term sheet is a written list of concepts, positions, or outcomes that could be included in a final agreement. It is especially useful in disputes involving many moving parts.  For example, in a dispute involving ground water and surface water users, a term sheet might suggest settlement concepts around the timing or rate of pumping, or the kinds of additional supplies to be provided to senior water users. A term sheet might also include  “the sleeves out of one’s vest,” which is a settlement element important to the other side, but of little value to the party proposing the concept.   

Complex negotiations often involve parties who don’t understand each other’s interests. Term sheets create understanding between parties, which makes negotiations more likely to be successful.  By structuring negotiations around a term sheet, the parties learn what is most important to one another. Moreover, stating settlement terms in concepts, rather than offers, allows parties to discuss ideas without fear of inflaming emotions.  In this respect, term sheets are similar to Straw Man Offers.  But term sheets are distinct from Straw Man Offers because they are written by mutual agreement among the parties, reflect the parties’ actual interests, and parties tend to construct term sheets later in the negotiation process.   

Proposing or agreeing to concepts in term sheets also builds trust between parties. In multi-party negotiations, a term sheet often leads to unexpected alliances on various issues, which can make negotiations more productive than if each individual party attempts to protect only its own interests (reflected in their own proposals and offers).  

In the example we started with, once the parties understood the idea of a term sheet, the discussions took on a more productive tone.  It still took many months of negotiation, but eventually the parties reached an amicable conclusion that satisfied—or dissatisfied—everyone equally.  


**Sarah Klahn is a water lawyer with Somach Simmons & Dunn who tries cases when she has to and settles them when she can. Her offices are located in Boulder, Colorado.

**David Belcher is an associate with Faegre Drinker Biddle & Reath. He assists clients with various aspects of legal proceedings and trial preparation. His offices are located in Las Angeles, California.

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Final, Contingent, and Straw Man Offers


Berton Lee Lamb and Sarah Klahn*

Offers made in a negotiation can come in a variety of “flavors.” The flavor you choose should be selected to maximize development of mutual trust, create open discussion, and search for good results. In an example of how not to open negotiations, one of our colleagues likes to tell the story of a client he was representing who directed him to make what amounted to a final offer at the start of a negotiation. The instructions he received were something like this: “Make X as an offer and don’t budge until they make a counter offer within a specific range.” Our colleague made the offer; the other party did not respond. The negotiation went nowhere because he was not allowed to engage substantively until the other side responded within the narrow confines dictated by the client.

“Make this offer and don’t budge” is an example of a opening with a final offer. A 2019 blog post presents the pitfalls of starting a negotiation with a final offer. One of the major problems with starting with a final offer is that it prevents development of the mutual trust that is so important in negotiation. That is what happened to our colleague.

Although his client eventually gave him latitude to negotiate outside the confines of the final offer, by then he was not trusted. The negotiation failed. Continue reading

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