There are certain words that you should simply avoid, whether writing or speaking. (And no, I’m not referring to profanity.)
When you are negotiating, never utter the phrase, “deal-breaker.” It doesn’t help you get what your client needs; in fact it makes your job much more difficult.
Lawyers negotiate all the time, and most think they are good at it. Most are wrong.
The first problem is that a typical lawyer aspires to be thought of as badass. I blame television for that. But I digress.
Not Strong. Stupid.
One way lawyers strive to be badass in negotiations is by trying to be “strong” on particular issues that they feel they need to “win.” So, they’ll describe why they need a particular part of the agreement to be X rather than Y. Then they’ll say, “We can’t accept what you’re asking for. It must be X, not Y. This is a deal-breaker.”
This is a very stupid thing to say.
You may be thinking, “Hey, that’s a good way to stake out a position on something I’ve got to have. Then the other side knows I have to have it and we can move on to the next thing.”
It’s a perspective that makes logical sense, but good negotiating relies on much more than mere logic. The human element is at least as important. That’s a person you are talking to, who has an emotional stake in his job, as well as a duty to his client.
When you tell your counterpart, “that’s a deal-breaker,” you insult both him personally and his client. First, you insult your counterpart by making it clear that you expect him to simply concede the point to you (because you are badass, and he isn’t). You also strongly imply that your counterpart’s client doesn’t have as much skin in this game as your client does and lacks the backbone to simply walk away without a deal. Also, if you are emotionally invested in your job, and this negotiation, why would you say something that suggests that you think your counterpart isn’t?
Before you sit down to negotiate, you need to work out, based on the circumstances, what it is you must get. When you start to negotiate, save those “must-haves” for the middle of the negotiations. That way, you’ll have shown you are serious about making a deal, and will have already advanced toward that goal.
Not Chess. Not Poker, either.
You can address “must haves” in a number of ways. You can pretend that you have more wiggle room than you have. That’s tricky. You can ask for more than what you must have, then drop back. That’s a bit less tricky. Or, you can just tell the truth, and tell your counterpart specifically why you can’t move on that term, then say, “So, I’d really love to give you what you’re asking for, but I just can’t. My client has to have X. Let’s find something else I can give you to try to balance that out.” Not tricky, and surprisingly effective.
Negotiating isn’t Chess, where all the pieces are on the board, and there are no secrets (or secret agendas) and the player with more skill wins. And while Poker has a big human element, it’s a poor analogy too, because negotiations are not efforts to win everything and wipe out your opponent.
You are looking for a jointly beneficial solution. And keep in mind that your counterpart wants to be badass, too.