Negotiation for Dummies

About the Author

I started practicing law in 1980. I was lucky enough to get a good position with a good firm and spent the next ten years litigating. Believing my strengths were in settling cases, I became a mediator.

After 15 years of mediating disputes and representing people in mediation, I developed a definite opinion that most (nine out of ten?) lawyers are lousy negotiators. Their hourly rates may have had some correlation with their egos but none whatsoever with their negotiation skills.

I decided it was my mission to teach them.

I worked with the Dallas Bar Association for around five years attempting to train lawyers in the art of negotiation.

I did some teaching at the SMU Dispute Resolution Center, a few speaking gigs, and an “Advanced Negotiation Course,” which received some acclaim. Someone filmed it and put it on YouTube. It may still be there.

My legacy culminated in an e-book, "Mastering Negotiation,” a free download, which can still be found on both of my websites (tnoblelaw.com and coachingwithwisdom.com).

From that vantage point, I observed the recent meeting between Zelensky (“Z”), Trump, and Vance. Here are my observations:

What Happened?

Error: No agenda? If these guys had an agenda, it did not show.

Rule: Always have an agenda for any negotiation.

Error: No agreement on goals, issues, or interests.[1]

Error: Z shows up in army uniform.

Rule: When negotiating with people in suits, wear a suit. It is best to look as much like your counterparts as possible. Some call this “mirroring.”[2]

Error: Z shows up alone. Trump is there with Vance and a roomful of other people.

·     Like Moses, Z speaks okay but not great. Unlike Moses, he did not have the magic staff. He needed someone to be his Aaron.

Error: No pre-negotiation chit-chat, no rapport building.

Rule: Every great negotiator (e.g., Herb Cohen, Stuart Diamond) tells us there is value in rapport-building before getting down to business.

Error: Z shows up without a gift for Trump; he fails to bow and prostrate himself. He does not understand the psychology of negotiating with a narcissist.

Digression: There are two ways to negotiate with a narcissist: (1) flatter him and act obsequious, or (2) dominate him. Method (1) is the only viable option with King Trump.

I was once hired to consult on a big divorce case (“big” as in lots of lawyers and lots of money).

I quickly figured out that our client (the wife) was codependent and her husband was an off-the-charts narcissist.

One of the lawyers on my team was brainstorming with me about tactics for the husband’s oral deposition.

My response: “Simple. Just watch old episodes of Columbo.” No one was better at manipulating a narcissist than the scruffy little man in the rumpled raincoat and the beat-up car.

·     Vance opens by taking a shot at Biden (because?), saying that all Biden did was “thump his chest” and never tried “diplomacy;” that is what Trump wants to do.

·     Z rebuts and cites several examples of diplomatic efforts that failed because Putin would not honor a ceasefire approved by other nations and refused to exchange prisoners as previously agreed.

Error: Trump, who needs a lot of attention and cannot remain silent for long, prefers to make stupid and rude remarks and interrupts to make an insignificant point about whether something happened in 2014 or 2015.

Error: Vance fails to answer Z’s allegations. Instead, he insults Z by calling him “disrespectful” and accusing him of using the American media to “litigate” these issues.

Error: Litigate? Strange (and poor) choice of words at best. As a Yale-trained lawyer, Vance should know what “litigation” is, and this haphazard free-for-all of a meeting did not remotely resemble the litigation process. Vance compounded his error by using an antagonistic tone.

Error: Unfamiliar with the history of the conflict with Russia, Vance changes tactics and shames Z for not being grateful that Trump is trying to end the conflict (shaming your counterpart rarely produces good results).

Error: Z interrupts Vance’s self-serving sanctimonious “you should be kissing the ring” speech.

Rule: Never interrupt. You learn more by letting your counterpart talk, listen, and take notes.

Error: Z shows up with no pen, paper, or stenographer.

·     Vance alleges that Z has “manpower” problems.

·     Z asks Vance if he has ever been to Ukraine.

·     Instead of admitting that he has not, Vance offers the pathetic response that he has “seen the stories” and suggests that any trip to Ukraine will be nothing but a “propaganda tour” – another insult.

·     Vance then accuses Z of coming to the US and “attacking” Trump (as the apparent attack dog Vance is projecting).

·     Z suggests that geography has removed the US from the conflict, but we will feel it in the future.

Error: This triggers Trump. He reacts, interrupts, and tells Z that he “is in no position to ‘dictate’ what we are going to feel.”

Error: This is a distortion. Z offered an opinion and did not “dictate” anything.

Error: This is going downhill in a hurry. Someone should have called a time-out, made a joke, or pulled up an old film of The Three Stooges.

Multiple errors: At this point, Trump attempts to dominate the conversation, and he and Z continue interrupting one another. The meeting is now officially out of control.

·     Rule: When we interrupt each other, neither party listens; the situation becomes chaotic and adversarial.

·     Trump: “You don’t have the cards.”

·     Zelensky: “I’m not playing cards.”

·     Trump (prior owner of failed casinos)[3]: “You are gambling with WWIII.”

Multiple errors: Trump uses hyperbole as a threat and repeats himself repeatedly. Apparently, he believes that being louder is better.

·     Whenever Z tries to speak, Trump interrupts him while, at the same time, never missing an opportunity to take pot-shots at Biden and Obama.

·     Trump grows angrier and louder.

·     Vance renews his favorite “failed to kiss the ring argument” by stating that in the few minutes they have been together, Z has never said “thank you.”

·     I guess we should remember that Vance has small children.

·     Fact checkers later reported that Z has publicly thanked America for our support over 30 times.

·     Vance closes with a suggestion that they just “go litigate.”

Huh?

·     We could call this the “meet you at the bicycle racks after school moment.”

·     Trump repeats: “You have to be thankful. You don’t have the cards.”

·     Trump takes another shot at Biden.

·     Z notes that Biden attempted a ceasefire, and it failed.

·     Trump: Biden “was not a smart person.”

·     Trump brags that he gave Ukraine better weapons than Obama and repeats, “You gotta be more thankful.”

·     In love with his card metaphor, Trump says, “With us, you have the cards; without us, you don’t have any cards.”

·     He finally makes the strange comment about how this will make “great TV.”

·     To no one’s surprise, this meeting did not end well.

What Should Have Happened?

1.   The parties should have had a mediator.[4]

2.   Z needed an advocate (from Harvard?) to level the playing field and speak for him.

3.   The parties needed an agenda. Without one, they just rambled about being thankful, who had what cards and interrupted each other.

4.   To settle any dispute, someone must bring order to the process; that would have been the mediator’s role.

5.   This was a free-for-all worthy only of children arguing on a playground.

6.   Many people say they are embarrassed by Trump’s behavior.

7.   What bothers me more is that all these people act like children on an international stage.

8.   While my sympathies are with Ukraine, Z’s negotiating skills are as poor as Trump’s and Vance’s.

·     When my clients try to negotiate their own deals, and I know they don’t know what they are doing, making the likelihood of reaching an agreement slim and none, I say, “This is like watching children playing with explosives.”

·     Sadly, in this case, that is not just a metaphor. It is literally true.

What Really Happened?

·     All master negotiators know that what happens on the surface is not what is really happening.

·     That is where the concept of “interests” comes into play.

·     Was this “a negotiation”?

·     I have analyzed it as such, but I question that.

·     It was more like a set-up so that Trump can do what he does best: bully and intimidate.

·     That is almost invariably his opening move in every chess game.

·     I am surprised he did not make up some demeaning name for Z and stick him with “Little Z” or something like that.

·     But what was the point?

·     To scare Z before getting down to some form of business?

·     To show off for Putin?

·     All of a sudden, the man who was once the spokesman for American isolationism sticks his nose into a war between Russia and Ukraine and wants to make peace. Why?

·     Does he want a Nobel Peace Prize?

·     Is it really about minerals?

·     Trump wants Putin to walk away with large chunks of Ukraine where Trump can build golf courses and sell vodka?

·     There is undoubtedly a hidden agenda. What it is has yet to reveal itself.

I stand ready to help – if I can wear a t-shirt and sweats.

[1] “Interests,” a concept introduced by Roger Fisher and Bill Ury in Getting to Yes, has become a critical element of any negotiation.

[2] My colleague, Henry Simpson, believes I am unrealistic to believe that Z will ever show up anywhere in a suit. Personally, I prefer a t-shirt and sweats, but a suit is a small price to pay given the stakes.

[3] I come from a long line of gamblers who taught me that “the house always wins,” but not true for Trump.

[4] My friend, Henry, believes that any mediator would have seen this as a farce and ended it quickly.