Win-Win Negotiation Skills for Lawyers: The Art of Getting What You Both Want

  • October 15, 2014
  • Janet Ellen Raasch

Deciding on a curfew time with your teenager… choosing which sofa to buy with your spouse… settling on a vehicle price with a car salesman… everyone is engaged in constant rounds of negotiation.

Law-office life presents a similar barrage of challenges. Law firm decision-makers must constantly negotiate with their colleagues on the appropriate schedule and deadline for a project, to settle on a budget, to mediate a dispute, to acquire employees and set their salaries, and to work with vendors on the cost of needed products and services.

So what type of negotiation style should you employ in your law practice?

Carp, Shark and Dolphin

Negotiation is the process by which two parties with different goals try to reach agreement on an optimal course of action.

The most important characteristic of an effective negotiator is flexibility. “When one approach is not working, the good negotiator is able to adapt to the situation and adopt a different approach,” says Peter Stark, a San Diego-based consultant who specializes in negotiation as well as leadership and management development.

“When it comes time to negotiate, you don’t want to be a carp,” says Stark. “A carp sees limited options, does not think he can win, does not like confrontation and focuses on maintaining the status quo. You don’t want to be a shark, either. A shark also sees limited options, but she wants to win at all costs, uses confrontation as a strategy, and focuses all of her energy on the kill, regardless of the long-term cost.

“The best negotiators are dolphins,” says Stark. “Dolphins are flexible in thought and personality; they can change their strategies and tactics depending upon the species with which they are swimming – carp, sharks or other dolphins.

“Dolphins see the world of options as infinite. They cooperate as long as their counterpart is cooperative. However, they retaliate quickly to retain control when they encounter a shark-like move. When one strategy does not work, dolphins are ready with alternatives. They focus all of their energy on achieving a win/win solution.”

Stark adapted the carp/shark/dolphin metaphor to the negotiation environment from The Strategy of the Dolphin by Dudley Lynch and Paul Kordis.

Win-Win Solutions

When parties negotiate, there are a limited number of possible outcomes:

  • Lose/lose, in which neither party achieves their goals;
  • Lose/win or win/lose, in which one party achieves their goals and the other does not;
  • Win/win, in which the goals of both parties are met; and
  • No outcome, in which neither party wins or loses.

Of all the possible outcomes, lose/lose, lose/win (if you are the one who loses) and no outcome are the least helpful in achieving your goals. “Sometimes, ‘no outcome’ is the best outcome,” says Stark. “Trust your gut on this one. Some deals are best left undone.”

Win/lose (where you win) may seem desirable at the outset, but your relationship with your counterpart will be damaged, perhaps irreparably. No one likes to lose. The losing party will not feel good about the agreement and will be reluctant to negotiate with you again. Eventually, you will become the loser in this relationship.

“The best outcome in any negotiation is a win/win outcome, where both parties in the negotiation walk away with a positive feeling and the sense that they have accomplished their objectives,” says Stark. “Trust is developed, and both parties will be willing to continue this mutually beneficial relationship.”

To create a win/win atmosphere, keep three things in mind:

“First, do not narrow down your negotiation to one issue,” says Stark. “When you have only one issue, you can have only one winner.” All too often, this single issue is price. Do research and ask questions so that you can bring other issues into the negotiation.”

“Develop as many issues or negotiable deal points as you can,” he says. “When you and your counterpart are stuck on one issue, tossing the same ball up into the air over and over again, juggle these additional deal points into the mix to get things moving.”

Second, realize that your counterpart’s needs and wants are not the same as yours. “Even ‘a good price’ can mean different things to different parties,” says Stark. If you do not understand this, then the other party’s gain is automatically your loss, which makes it virtually impossible to create a win/win outcome.

“Third, once you understand that your counterpart’s needs and wants are different from your own, do not assume that you know what they are,” said Stark. “In any negotiation, there will be ‘explicit’ needs that are expressed, like price, finance rate or deadline.”

“However, there will also be ‘implicit’ needs – needs that are not expressed,” says Stark. “These are very powerful and actually drive the outcome of the negotiation. Examples are the desire to be liked or loved; to trust and be trusted; to be respected; to be right; to look good in the boss’ eyes; to be ‘better’ or have authority; to get a good deal; to feel listened to; to be recognized; to appear intelligent; to win; and to have a relationship.”

Be Prepared

Much of the work that leads to successful win/win negotiation takes place before the parties actually meet.

“Take the time to determine your own needs, wants and goals before you enter into any negotiation,” says Stark. “Write these down. For example, you might have received an estimate of $50,000 for new carpet for the law office and you need to pay less than that in order to satisfy the managing partner. Ideally, you want to pay $40,000. However, your goal is to get the carpet for $45,000 and a few concessions on installation.”

Your goal is your bottom line, and you must be ready to walk away – generating a “no outcome” outcome – if you cannot get it.

You must also take the time to determine – ahead of time – the needs, wants and goals of your counterpart in the negotiation. “The side with the most and the best information usually achieves the best outcome,” says Stark. “Plus, when you are well-prepared you are confident – and confidence is essential to negotiation.”

One of the best tactics to use in preparing for negotiation is the question. “Open-ended questions work best when you are trying to build a relationship and gain information,” he says. “These can be who, what, where, when, why and how questions, and can be used to uncover your counterpart’s explicit and implicit needs.”

Questions are also useful during the negotiation itself. Closed-ended, yes or no questions should be used when you are trying to gain a concession or confirm a deal point.

“Almost everything that you say in the negotiation process should be in the form of a question,” says Stark. “Strategic, well-timed and respectful questions can be used to gain information, give information, clarify or verify information, check understanding and level of interest, determine behavioral style, gain participation, start someone thinking, bring attention back to the subject, reach agreement, increase reception to your ideas, reduce tension and give positive strokes or build rapport.

“Armed with these skills, any law firm administrator can become a dolphin – adaptable enough to achieve win/win results in almost any situation.”

Stark discussed negotiation skills at a quarterly core competency session of the Mile High Chapter of the Association of Legal Administrators, held June 8 at the Adam’s Mark Hotel in Denver. Stark is principal of Peter Barron Stark & Associates ( and author of a number of books, including The Only Negotiating Guide You’ll Ever Need: 101 Ways to Win Every Time, in Every Situation.

Peter Stark discussed negotiation skills at a quarterly core competency session of the Mile High Chapter of the Association of Legal Administrators, held June 8, 2006 at the Adam’s Mark Hotel in Denver. Stark is principal of Peter Barron Stark & Associates ( and author of a number of books, including The Only Negotiating Guide You’ll Ever Need: 101 Ways to Win Every Time, in Every Situation.

Janet Ellen Raasch is a writer/ghostwriter who works closely with lawyers and other professional service providers – helping them to position themselves as thought-leaders within their target markets through publication of informative articles, books and content for the Internet. She can be reached at (303) 399-5041 or