Arbitration & Mediation

Negotiation 101: Putting "No" into a "Yes Sandwich"

By Victoria Pynchon

With so much emphasis placed on Getting to Yes in negotiations, we often forget the power - indeed the necessity -- of saying "no."

Think of yourself in that iconic bargaining environment, the foreign bazaar.  No matter how much of a buyers' market you're in, at some point, the seller must say no -- otherwise you'd just bargain him down to zero, or perhaps negotiate a deal in which he pays you to take the merchandise off his hands.  Fortunately for negotiators everyone, the Getting to Yes guy -- William Ury -- has also written an entire book on The Power of a Positive No.  As Time Magazine wrote at the time of "No's" release,

In The Power of a Positive No, Ury offers guidance on the flip side of reaching an agreement: how to deal with a situation in which you simply want to put your foot down. No is so often hard to say, Ury writes, because it highlights the "tension between exercising your power and tending to your relationship"--in other words, between getting what you want in the short term and keeping everyone happy for interactions down the road. People often err in one direction or the other, prioritizing either the relationship by saying yes when they long to say no or their own power by brusquely saying no and alienating the person they're dealing with. Then there is the ever popular route of avoidance--saying nothing at all and gaining neither what you want nor goodwill.

See Why Almost Everyone Has Trouble Saying No.

Ury's answer to "no" avoidance?

[S]erve your no sandwiched between two yeses. It will go down more easily and preserve your relationship yet still allow you to take a stand.

Easy enough to say, but how, exactly, do we accomplish this brain-challenging feat?

You say "no" in the same way you say "yes," focusing on "underlying interests instead of positions (discussing what you want instead of the way you've decided to get there) [and] developing another option (what Ury calls Plan B)."

How do you satisfy your negotiation partners' underlying interests (what they really want rather than how they believe they need to get it)?  Primarily by asking diagnostic questions about their needs, fears or desires.(.pdf of Northwestern Professor Leigh Thompson's enduringly great article Why Negotiation is the Most Popular Business School Course) See also chapter one of her must-read The Mind and Heart of the Negotiator here.

Say, for instance, you sell software and your customer wants a broad indemnity agreement that amounts to a virtual insurance policy.  You know the type.  "I want to be indemnified for any litigation arising from my company's use of your software.  It's non-negotiable.  We'll pull out of the deal if you don't provide it to us."

Is our bargaining partner's demand primarily being driven by need, desire, or fear?  Those of you who said "fear" understand the reason negotiators ask for indemnity clauses in their contracts.  They're afraid of future potential liability.  But what are they really worried about?  "Any litigation arising from my company's use of your software" is surely more than they need or want.  What might be included in "any litigation"?  An employee's use of the e-mail software to commit mail fraud?  An employee's use of the internet to download child pornography?  Potential liability for copyright infringement of a competing piece of software? 

The diagnostic question is simply:  what type of potential liabilities are you worried about?  And the "no" that is "sandwiched between yeses" is expressed in a positive fashion.  "We're always happy to craft an indemnity agreement that covers potential liabilities arising from, i.e., defects in the software that cause particular types of harm to third parties.  In fact, because infallible software has yet to be developed, we like to offer our customers a suite of services to quickly remedy any "defects" to prevent potential liabilities to third parties.  And now that we're talking about it, let's define "defects" so that it fully expresses both of our understandings going forward.

The examples of a "no" sandwich are limitless.  The key is to slow yourself down during the negotiation so that you have time to reframe your "no" as an opportunity for both parties to get more of what they really want than an ambiguous contract term including "everything" could possibly actually provide.

As an old spiritual advisor once told me, God never says "no" to a prayer.  S/he says "yes," "later" or "I have something better in store for you."  Approach the material world in the same manner and not only your opportunities, but also your heart, will expand in the process. 

Full post as published by Settle It Now Negotiation Blog on May 05, 2009 (boomark / email).