Transcript

Nolan Martin : Hello, and welcome to the NEGOTIATEx podcast. I am your co-host and co-founder Nolan Martin. With me is my good friend as always Mr Aram Donigian. Aram how are you doing, sir?

Aram Donigian : I'm great. I'm especially great coz I get to introduce a friend and colleague today to the program. You know, over the years Nolan, I’m doing this work; I've been introduced to some amazing people who are not just thought leaders in this practice of negotiation and conflict transformation, but are out there doing really hard work. And today our guest, Hal Abramson really epitomizes those things. A thought leader, a teacher and a practitioner. So let me introduce Hal, and get us going.

Hal's a full-time faculty member at Touro Law Center in New York where he has taught, trained, arbitrated, mediated and published articles and books on negotiations, mediation, advocacy, and intercultural and international disputes for more than 30 years. Okay. When once you go over 30 years, you just go 30 plus, right? Because, because how…

Hal Abramson : Sounds good to me. Sounds good to me.

AD : Hal’s only 45 years old, right? So he is been doing this since a teenager. Hal's teaching training experiences include helping the negotiation program at the US Air Force Academy, where I had the opportunity to serve with and work with Hal- as well as teaching at two of the top alternative dispute resolution programs in the US: Cardoza Law in New York city and U N L V law school in Las Vegas. How has also taught or trained on dispute resolution in 19 countries on six continents? Did you not get to Antarctica? How is that?

HA : Yeah, I have to have something to look forward to

AD : ] Okay. Hal has received numerous awards for his publications and mediation such as the annual book award of the international Institute for conflict prevention and resolution with his book, Mediation Representation, Advocating as a Problem Solver and even more recently, his article on Nelson Mandela as a Negotiator, which received the CPR award for the best professional article. And I hope we can talk a little bit about that article and your choice of Nelson Mandela as we get in. Hal's experience, expertise extends far beyond the classroom as well in connection with the new Singapore Mediation Convention, he represented IMI and IAM and assisted the US State Department when the UN drafted the treaty on enforcing cross-border mediated settlement agreements. In addition to participating in drafting sessions over three years, he served as an expert advisor to the United Nations commission on international trade law, when he designed three mediation education programs for the UN delegates. He also co-chaired the first symposium on the convention after was adopted by the general assembly. The symposium included speakers who helped draft the convention and prepared chapters for a book that he edited and has been published. This is only a fraction folks of the accomplishments in 30 plus years of being an educator and practitioner. It is a joy to welcome you Hal to our program. Thanks for being with us.

HA : Well, thank you. Thank you for the invitation. This is a great opportunity. Appreciate it.

NM : Absolutely Hal. So as we kick things off here, I'd like to kind of know more about your journey of how you got to become a negotiator and then also were there any key developments along the way on that path?

How Did Hal Begin His Negotiations Journey? [4:37]

HA : Well, it's an interesting question for all of us, why we get involved in this field and the reality is we all know we're negotiating all the time. So the question is when do we realize we could use a little bit of education?

AD : Right.

HA : How to do a little better because you know, I've taught mediation for many years and when you teach mediation, that's a delight coz that's new to everybody. But when you teach negotiation, everyone's already a negotiator. Everyone's already got experience. Everyone's already an expert to some extent. So for me, when I was in law school, which more than 30 years ago, I like that reference point. Let's stick with that.

HA : More than 30 years ago, there weren't any negotiation courses. It was a brand new field. It wasn't even a field at that point. This is early 1970s. And I was interested in the subject at the time, but there's nothing to learn. The material wasn't there. So, then I practice law for a while and did some public policy work and then decide to go back to school after eight years. And I go back to a school in your neck of the woods, close to your neck of the woods in Boston and go to the Kenny school government. And I say, huh, maybe there's a chance to take a course in negotiation. Is there such a course? And there was one, but not the Kenny school, not the law school yet. They had some courses in their early stages, but there's a course being offered at the school of education.

And so I said, okay, I'll take that. And I go sign up for the course and it is filled. It's packed with hundreds of people. They bring in guest speakers. What else do you do when you have a new idea, new course? There's no textbook yet. There's no single expert. So they brought in a bunch of speakers and one of the speakers was a guy by the name of Roger Fisher. And he comes in and he says, “Hey, I just published a brand new book”- again more than 30 years ago [laughs]- and he starts describing to us Getting To Yes and what this book is about. I actually have a first edition of that book, a hard cover. It's green by the way, the book,

AD : Oh, I thought it was chiseled out of stone Hal.

HA : I think Roger Fisher probably would agree with that.

So that became my first formal introduction to thinking about and studying dispute resolution and negotiation as a separate field. It was a hodgepodge of a course because the field had not been very well developed at that point. And it was done using a Harvard Business School model of a lot of case studies. And one of the case studies that they did was- it's pretty interesting from a historical perspective- was on the negotiation or releasing the hostages in Iraq. And what happened was that just happened a year or two before. So it's really the first thing on everyone's mind. And we know what a disaster, all that was with the hostages being held for over a year. And then all being released on January 20th, the day that president Reagan gets sworn in his president. And so I'm in this class and we're studying what could Carter and his team have done differently?

And of course, I'm at Harvard. So this is not a group of people that lack confidence. And everyone had opinions on what they should have done after the fact. And I'm just sitting there just listening. I had no idea of what should have been done. We all were frustrated by the protracted process and horrifyingly protracted process. And so, at the end of the discussion- there's a new class, large class- professor announces: “by the way, we do have in the class, someone who was there.” And we had in the class, one of the two women hostages. We didn't know that, and the whole room went silent and everyone just stopped talking. And this woman started describing her perspective of what was going on while she was there for a year as a hostage. And unless I walked away with, we had to have a lot of humility when it comes to understanding disputes and understand what's going on because she shared stories with us that many of us had not even contemplated and had a perspective that we didn't have. And it became for me a very early lesson, thinking about negotiation is that we have to be good listeners. We have to be ready to learn. We have to be ready to hear other people before we can deciding how to proceed in a negotiation. So that was a very formative experience for me.

AD : Thanks Hal. I'll tell you, and I know we'll, we'll build on this. You always, in my opinion, in the years I've known you, you just demonstrate that humility, the willingness to take on someone else's perspective to listen and to learn. So thanks, you know, in one of your articles that I've enjoyed reading, you discussed the difference between good practice tactics and tricks. It might be helpful for our listeners to maybe just kinda, as we start off here, hear some of the theory that informs your thinking and your practice around negotiation, whether it's that model or anything else kind of, you know, what is it that drives the way you think and approach negotiation?

Good Practices, Tactics And Tricks [10:00]

HA : Well, that article you’re referring to is relatively recent article, uh, that's called Good Practice Attackers and Tricks and Negotiation Styles. And it was a really interesting research project for me because one of the things that's always struck me in the field of negotiation is that a lot of people have made catalogs or lists of the do’s and don'ts of how to negotiate. And two people that are very influential in my thinking who have extremely high regard for the professors and had done some really significant, informative work in this field is Charles Craver from, George Washington Law Achool and John Wade, who from at that time was in Australia, teaching there. And they both spent a lot of time cataloging a lot of specific strategies and tactics employed or used by negotiators. And, uh, John, what he did is he created these baseball cards and he'd have these baseball cards on one side would say, if the person does X flip the card over and here are six responses.

AD : Hmm.

HA : And then what Charles Craver has done is that he has written article after article describing cataloging, all these different detailed strategies people engage in that was designed to inform us of what to be aware of when you go into a negotiation. And I look at those lists and I go, how are you supposed to memorize this stuff? How are you supposed to teach this stuff? So it got me thinking about, is there a way to simplify this, to make it so that this information can be accessible at your fingertip in a negotiation that is fast moving, you have no time to reflect? You have to go into what I like describing as your default process. That's all you can do. You can go with your instinct and you need something to inform that instinct. And that's when I start developing this idea called good practices, tactics and tricks.

Good practices is a general category that covers all the things we are always teaching in negotiations. You know, identifying interests, being good listeners, ethics, all the things that we talk about and Roger Fisher talked about in his and Bill Yury’s getting to yes book that comprise good practice as a negotiator. And anyone's always teaching that any textbook, any class. And so that becomes good practices.

Tactics is a really intriguing second category for me because tactic is what people use all the time in negotiations, but they're really upon closer examination, a little disappointing that we do this stuff. So for example, one of the common tactics, we all know everyone uses, very common, no one gets upset when it's done: is extreme first offers.

AD : Yeah.

HA : What I like to say to people is, you know, could you try to explain this to an eight-year-old? Explain to people to an eight-year-old, here's how to be a good negotiator. Go into a negotiation, make an offer that's extreme that no one's gonna accept. It's not really a real offer. You're gonna hide that profile. And then eventually you'll get to what you really want. Now, when you present it that way, it becomes so obvious how silly it is. And yet it is so ingrained in our culture. It's so ingrained in the way we do things and it's been supported by law, psychological analysis that we have to accept that that's the reality. But let's label it. Let's not label it as a good practice. Lets label is a tactic. And here's the key, a tactic poses risk, good practices do not. So tactic pose a risk, meaning that when discovered it could hurt or undermine or dilute the confidence in this negotiation relationship with the other side, because now we know the person's gonna do that kind of thing.

Now the key: tricks. The third category, and I wanna distinguish between taxes and tricks because tactics are risky, but acceptable. Tricks by definition are risky and not acceptable.

AD : Got it.

HA : And I think that's a useful distinction because it helps give a negotiator something to think about when they're making their choices, as things are unfolding, very rapidly.

AD : Love the distinction that you make between those three and the tie to choices a negotiator has at the table. Yeah. Makes it much more tangible and useful for someone who's, as you said, needing to be informed about my instinct.

HA : Sure. So that's where that came from.

NM : So then how do you advise when responding to someone using a dirty trick?

Responding To Dirty Tricks At The Negotiation Table [14:38]

HA : I think that, let me say one thing first about dirty tricks or tricks. I got criticized creating that category by some people. And the criticism is: if you create the category, then you're approving it. And my answer to that is: I'd rather create the category and recognize that's the reality in the marketplace than pretend it doesn't exist. Because once you recognize that we have something to discuss. Which gets to your question, how do we recognize a trick or do a trick? Well, first we have to know that out there because there's a big incentive to engage in tricks because if you're successful, the payoff is enormous. And so we know people do it. People are gonna lie. People are going to engage in different kind of games. If they get away with like good guy, bad guy routine, if they can pull it off. The risk is: if they get discovered by my definition of tricks, if discovered it can destroy the negotiation. Tactics don't tricks do so.

Now the question is, how do you discover it? So I'm gonna give you another story, I’m big on stories to illustrate things. It is a dated story, but it has a currency today. It was dated. It would be more dated a couple months ago. In 1992, 93, I had the fortunate opportunity to spend a lot of time in Russia. And I was there doing a number of programs, building a program for students to come there, to study and doing program rural law program with the American Bar Association. And during the time when they were struggling to build a democracy. We were trying to open up a summer program there and the Dean sends me there and says, “why don't you see what you can figure out?” And he just says, “let's go there”. So, I go there and I knew people at Moscow State University. Moscow State University was the premier university in the whole former Soviet Union; without a doubt, one of the top universities in the world.

And we definitely wanna have it there if we can work it out. This is 1992-93 so flag just went down. Everything's open. No, one's really quite sure what's going on. So I go there for a five day negotiation. It turns out to be five days- we're meeting every day, trying to negotiate, whether we put together this program. And we get toward the end of the program, we worked out all the cost of the program. People were terrific I was working with and at the very end, I think, okay, I think we got it. It's gonna work. We know what the costs are. And then they said, “Oh, by the way, there is a 30% educational tax that we have to add to all this.” I go: “30% educational tax? I didn't know anything about this.” I said, well, that's a big, we just have to pay it. Just, it's just tax imposed by the Russian government. And I just wanted let you know. I said, well, that changes the economics of all this. At which point I had with me a Russian attorney. And she pulls me aside and she says, “no one pays that money. No one pays taxes in this country.”

And I said,” Ooh, is this a trick?” [laughs] what is going on here? I don't know. And so when you say, how do, how to deal with trick, we first have to do or due diligence to figure out whether it's a trick or not. Because if you call someone on a trick, they’re gonna be offended and you gotta be sure you got it right. So I didn't know what I had here at this point, but I knew this was going to be problematic. So I remember reading, Getting to Yes, and objective standards. That night by happenstance, I was having dinner with a friend in Russia, who's doing business with an attorney. And I explained to him what just happened. He said, “oh, that tax is an exemption for educational institutions”. I go, really? I said, are you sure? He said, I'll get back to you tomorrow.

He goes back to me next day. He said, yes. I said, great. So instead of saying, you're not gonna pay this cuz to this day, I never know whether, if they collected what they're gonna do with it. And everything is up for grabs in that country at that point anyhow. And, and I really wanted this relationship. So I said, why don't we hire an attorney to give us an evaluation of whether or not the tax applies to this transaction? Because if it does, it changes the entire economics of this transaction. And we agreed, we hired an attorney. We agreed to, and attorney came back with an opinion that said, oh, it doesn't apply. Tax never applied. We avoided the issue, whether it was a trick or not. And we proceeded.

AD : So naming it didn't matter, whether it was a trick or tactic because of how you chose to engage with it by going to standard, by a standard.

HA : Absolutely. Yes, yes. Now it doesn't always work that way. Sometimes a trick is really a trick, but you can find out by going to objective standards, if the trick is a lie, you can figure it out by going to objective standards. That question we love in negotiations. Why do you want that? So I asked the “why” question.

AD : You know, Hal, in that same article that you wrote about practices and tactics and tricks, there's a big piece in there around negotiation styles. How can our listeners, if they were to understand their conflict or negotiation styles, how could that help make them more effective in helping the choice, choices, decisions they're making, whether it's in personal or business or professional or whatever, the context, sort of negotiations they're involved in?

Negotiation Style Vs Conflict Style [19:21]

HA : This was a side benefit of this project. And while I characterize a side benefit, it turned out to be a very valuable one for me, anyhow, in terms of the work I do. And that's distinguishing as I did in this article, between negotiation style and conflict style. And up to this point in the literature, at least stuff I've read, the words are used interchangeably. And usually at least the stuff that I've seen, they usually think about negotiation or conflict style as being one of these five categories that have been widely used and tested. You know, the cooperative-competitive style. Are you compromising? Are you an avoider? Are you accomodating? And when I started discovering, cause I never really used that much before that article, that people were, some people were using those materials as a way to label people's negotiation style. “Oh, so you're a competitive person”, as if that's the end of the discussion or you're a cooperative person take the survey.

And I started thinking that's not really helpful because then it just says to people that's who I am and that's the end of discussion. So I started thinking we really have to make a distinction between conflict style being what may be our inclination. Remember I teach in a law school. So you know what their inclination is, they're gonna be very competitive. That's probably one of the reasons why they are in law school, but we know that that's not always a very effective approach. In fact, there's a lot of cost associated competitive style. So I started thinking when teaching this and for us, when reflecting our own approach to negotiation, it's useful distinguish between what our inclination may be due to either our genetic makeup, our environmental makeup, our cultural upbringing, whatever it could be. It's not a question of good versus bad. It's a question of just who we are.

And we all know people who have different inclinations, whether it's cooperative or avoider or whatever the category might be. You know, look at them, say they're bad people, just what their personality. So then I said, let's separate that from negotiation style- negotiation style is what we get to choose to do. Conflict style is who we are. Hmm. In fact, this pithy little statement in my article is “conflict style is who we are. Negotiation style is who we want to be”, who we want to be. And there it says to us, we have choices to make. And those choices take us back to thinking about good practices, tactics, and tricks.

AD : That's nicely explained. And I like the identification that sometimes when we box somebody into a style, that's just how I am- that's how they are now. All of a sudden, we're trying to say, so the outcome's predictable for saying, if you know, who do I want to be? And especially if you go back to what you were saying about tricks, how do I shape this intentionally to achieve the goals, the objectives I'm trying to achieve.

HA : Absolutely. And it gives us space to have a conversation about the stuff that we love teaching and training people on that's right. Because then it says, okay, well, we're now teaching. I, I did a program a number of years ago for a group that well known at the time was the largest insurance company in the country. Then it became a very bad front page news and that's AIG. And I did a training program for them, for, with another colleague to train them on mediation advocacy. And at the end, and these are people who've done hundreds and thousands of mediations more than I'd ever do in a lifetime. And they were asking good faith, smart people. And I come in there and what do I say to them as a trainer? I say, you know, nice try. <laugh>, you know, you've had a good life so far, but bad choices.

Now I'm gonna teach you the way you should do it. That was not going to be well received. Also talk about having a little humility. They had experiences. I didn't have, I thought there's a chance for me to learn from them. So I said, we're gonna show you another set of options. And then you're gonna figure out what can work or not work in your practice. And we decided, because we had to roll out this program to the entire company, we came up with a, uh, uh, a little contest to develop a slogan for the training program. And they picked the, the slogan and we, and they came up with names and the slogan they selected was negotiations, choices, choices. And I think that's what got me thinking that was back in 2007, 2006. That's when I started realizing this is really about making choices. It's not about me posing what you should do as a teacher or trainer. It's about teaching people that their choices to be made.

NM : Hey, everyone, Nolan here. Need to end the conversation right here. So sorry, but join us next week as we continue our conversation with Hal. And if you haven't already please rate, review and subscribe to the podcast, we will greatly appreciate it.