AuthorVan Patten, Jonathan K.

The art of negotiation requires learning how to say no, until it is time to say yes. No is essential to getting to yes. Whether in the litigation or transactional context, you cannot be effective in representing your client's interests without a healthy dose of no. A continual resort to no, however, may be ineffective because it stands as an obstacle to agreement. The very short list of when an unrelenting no is "successful"--including childhood tantrums (rarely), abusive veto power, and the threat of mutually assured destruction--may serve to prove the point, rather than refute it. No is necessary, but off-putting. It advances the process of coming to agreement and yet may derail it, if not used with care. (1)

There are many ways to say no. We learned this from parents and, later, from teachers. But no is not the exclusive prerogative of authority. Most of us acquired valuable lessons from our peers through rejection and failure at school, play, and dating. (2) The educational process, work experience, and life in general, present us with the experience of no in many different contexts. The great variety of ways, ranging from a soft no to a hard no, almost seem to defy categorization. And yet, patterns emerge. There are some uses of no that recur so often that we can identify them as types. Awareness of these types helps us to resort to them more readily and more appropriately, without falling into the trap of repetition, which is the mark of an amateur.

Many of the ways to say no are well-known, but it is useful to look at them collected together and to think about their use, both tactically and strategically. As with cross-examination, there are constructive uses of no in addition to the more well-known destructive ones. It should also be noted that there is nothing magical about the number twenty-five. I have found it to be about the right number for an article. (3) There are undoubtedly more to be identified. (4) I hope that I have chosen the twenty-five best examples.

  1. The Soft No--"Yes, but.... " "Yes, but" effectively means no, although it is a soft no. This type of no is not a rejection. It is more like an affirmation, with a suggestion. It is the most useful version of no because it starts from a common ground, while at the same time it points to something that needs to be resolved. "I agree with your approach, but it does not go far enough. Think about this.... " It is a no that encourages, or at least leaves room for, a later yes.

    The affirmation sets up a suggestion. In a study group, one member might say, "let's go through the Contracts assignment." Another member responds, "yes, but we should also leave time to prepare for this Friday's Property quiz." In a car sales situation, the salesperson says, "this is our lowest price of the year for this model." The prospective buyer responds, "yes, but you are not giving me enough value for the trade-in." In a mediation, plaintiff's counsel says, "liability is clear because your client rear-ended mine." Defense counsel points out, "yes, but your client didn't follow her doctor's prescribed treatment." As these examples show, "yes, but" may be a control device to alter the direction of the negotiation. It is also one of the easiest ways to expand a discussion from a single-issue matter to consideration of additional issues. (5) With more issues, there is greater room for give and take on the newly expanded playing field.

    Assent to a common ground may sometimes be disingenuous. That is, the apparent agreement on the surface may hide a more fundamental disagreement underneath. Insincere agreement masks the greater degree of real difference between two parties. "Yes, but" cannot always close the gap. It may delay the identification of those differences that could have been resolved with a more direct approach. The loss of credibility when those differences become apparent may serve as a caution to indiscriminate use of "yes, but."

    "Yes, but" is a combination of positive and negative, without being so contradictory so as to promote cognitive dissonance. The combination of yes and no should be viewed in balance. You want both, but think about which one should be stronger. In the legal context generally, the no should be strong enough so that there is no misunderstanding about any deal until there is one. In the sales (or dating) context, the yes probably should be strong enough so that the "but" doesn't become a "wet blanket," unless you want it to. (6) The soft no can become a hard no if the negative overwhelms the positive. (7) And it can become an unmistakable no, if the positive is a mere afterthought. (8)

  2. Blame Someone Else. The easiest way to say no without necessarily giving offense is to blame someone else. "I see where you are coming from, but I know my client won't agree to that." It is like "yes, but," with the negative serving as a deflection away from the messenger. It involves a juxtaposition of contrasts, with the more attractive alternate pushing toward the center. "Attractive" is relative. Actually, it might be the least unattractive alternative. "I could tell you, but then I'd have to kill you." Meaning, "I won't tell you the secret, but you will at least live." The strength of blaming someone else lies not in the truth of the blaming but rather in the contrast of the two approaches. It allows for greater flexibility in selling the no by contrasting it with a worse alternative.

    As a blame-shifter, this type of no serves to cover your tracks, if only for the moment. "Can I go with my friends to the mall?" "Your mother said no" or "Go ask your mother." This effectively means no, and mom gets the blame, while dad maintains his coolness. This works for the lawyer, too, as it maintains reasonableness, civility, and open lines of communication, while not moving on the underlying question. It may be that the blame is insincere because it is actually your position as well. Thus, the blaming of another may be a deliberate deception. If it is used against you, remember the smiling cobra: don't be taken in by the apparent smile, it is still a cobra. If you are using it, be careful not to jeopardize your overall credibility with this deception.

    This tactic is also known as "good cop/bad cop." As such, it is similar to "yes, but." It deserves separate treatment here because many examples cannot possibly be taken for a soft no. With good cop/bad cop, the no is more like the contrast between "no, but" and "hell, no." It also benefits from the seeming improvement that occurs when someone stops hitting you in the face. The good cop doesn't have to be good, just not quite so bad. (9) Thus, you can move the center of the argument by insisting on something impossible (blame assigned accordingly) and then proposing something closer to the realm of possibility, which looks much better by comparison.

    The good cop/bad cop tactic does not require two to be physically present to play that gambit. To a certain degree, you are a script-writer and you decide who plays which role. Think about casting yourself in the role of the bad cop, or vice versa. "My client wants to close the deal before the end of the year, but I won't let him do it until we can resolve the following issues.... " "I think it is in the interests of both parties to come to an agreement today, but you have to understand that my client is very skeptical of your client's good faith." It may even help if the other person is not physically present. Because you are talking about intentions, emotions, or attitudes, there is inherent flexibility in how you present the contrast.

    One can posit a "straw man" to play the role of the bad cop. Many politicians argue this way, with the bad cop being a caricature. (10) The straw man can play off popular conceptions, with a good cop twist: "some say that lawyers are whores and will advocate for any position. But Atticus Finch gives us an example of the lawyer who put principle above personal concerns." (11) You can go "off-code," or against the archetype, and play your client or your client's interests as an exception to a popularly held image. (12) "Instead of running away from his mistake, he owned up to it and took full responsibility." The ability to fashion a bad cop figure to provide contrast allows more flexibility in selling a less than perfect no.

    Blaming someone else, through the good cop/bad cop technique, is often effective because it creates a contrast that favors movement toward your preferred position. It takes the sting away from your no and transfers it to someone else, who either has accepted that role or cannot contradict it because he or she is not there ("the empty chair"). You get the benefit of saying no without having to pay a personal price. Cowardly? Maybe. But it maintains your position without losing much, if anything.

    Ironically, you might also accomplish the same effect by taking the blame yourself. "I'm new to the case and need a little more time to catch up with the rest of you." "You may be right, but I haven't had the time to fully research that argument." "Perhaps I did not make my point clearly. What I meant to say was...." Humility and civility will keep the conversation going while you are still in search of how to get to yes. You can take on the role of bad cop, so long as it does not undermine your credibility or your long-term strategy.

  3. Blame Something Else. The bad cop does not have to be a person. The bad cop could be a situation. This is especially important when trying to sell a bad option. Contrast the bad option with a worse option. That is, faced with a situation that may be viewed as "between a rock and a hard place," the rock you show seems less threatening than the hard place that can only be imagined. A contrast that posits a choice between the lesser of two evils can be effective because it purports to be grounded in the relative realism of the two seemingly bad options. "You can pay me now...

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