I was thrilled to have the opportunity to speak at the State Bar of Texas’s Advanced Administrative Law Course last week. The topic was Negotiation Techniques to Use in Settling Cases and Everyday Life. A technique that I did not discuss at the course but one that I frequently use is what I call “giving the ‘yes.’” Parents of toddlers will be very familiar with this strategy: “I am not comfortable with you climbing on the refrigerator. You CAN climb on the sofa!” “You can’t eat chocolate pudding for breakfast. You CAN eat eggs or toast!” “It’s too hot to play outside right now. We CAN play hide and seek inside!”

Notice how much nicer this feels than just saying “No.” “No” is a brick wall. The result is usually a power struggle between parent and child. (How often do these work?) But when you give the child a “yes,” she has another option, one that recognizes her needs. This gives her the sense that her needs are valid. She can then choose whether to accept this other option, giving her a sense of autonomy. Finally, the response in no way demeans her initial request, which gives her a sense that her needs are respected.

Why, during negotiations, do we lawyers (or should I say we litigators? Perhaps transactional lawyers are less inclined to resort to such chest beating) frequently resort to tactics that demean the other side?

I recently had opposing counsel tell me that my request was so stupid that he wouldn’t bother conveying it to his client. How did that make me and my client feel? Disrepected. Did it advance settlement talks? No. It stalled them.

The most effective negotiators find a way to (1) back up their “no” with facts and reason and (2) keep advancing the ball by giving a “yes.” E.g., “We can’t do that because of tax reasons. Here’s what we can do.” “We can’t do that because the verdicts don’t support it. Here’s what we can do.” “We can’t do that because the evidence establishes X. Here’s what we can do.”

Maintain a respectful tone in negotiations. Support your position with law and facts. And keep advancing the ball by giving the “yes.”