Originally from Dispute Resolution Journal

The following is an excerpt from the book On and Off the Record: Colosi on Negotiation, which was first published in 1993 by the American Arbitration Association. The second edition was recently published in 2001.

The first rule of negotiation is that there are no assumed rules for negotiation. The absence of structure—the absence of “rules of negotiation”—is often the reason why many people are uncomfortable in the negotiation process. Most people know intuitively that if they are to be convincing, they need to be confident, and if they are to be confident, they need to be comfortable (comfortable, confident, and convincing are what I term the three C’s of negotiation). Therefore, to make the process comfortable, the parties must negotiate the rules of engagement just like everything else, and these rules will be different for each negotiation.

Negotiating rules of engagement provides a way of working out your fears of negotiating. Our fears of the unknown, our fears of surprises, our fears of the unpredictable—they all work against our confidence and our ability to be our convincing best. Agreements regarding ground rules between parties are needed on essential issues such as time, place, duration, participants, scope of the formal discussions and agenda, as well as on seemingly trivial concerns such as the shape of the table. So, make the most of this opportunity. If you fear the other party will not keep important matters confidential, then negotiate a confidentiality understanding. If you fear the other side (or your own side) will “run to the media” with information, then a news blackout rule is appropriate. If you fear the other side may interrupt too much, then a rule on non-interruption is appropriate. In effect, such discussions are themselves preliminary negotiations which set the pace for the “substantive” negotiation to follow, and are just as critical as the substance of the negotiation.

Successful negotiation of even seemingly trivial concerns is essential to the eventual outcome of any negotiation because it is during the preliminary process, or “ground rule negotiations,” that each side literally trains the other side as to how it negotiates. For instance, if members of the other side demand a round table at the beginning of every meeting during the preliminary series of talks, and we counter with a non-negotiable demand for a triangular table, but after three weeks of pushing we reluctantly agree to a round table, they have learned that we might not maintain over the long haul what appears to be a resolute position. They’ve learned that, if they push us for three weeks on a procedural matter, we’ll knuckle under. Such discussions also give information to the other side about our intentions, the way we do business, or our patience, sincerity and reliability. In other words, they may begin to believe that our resolute position regarding a substantive issue may also waiver over time. The problem is they may be wrong. We may not yield. But the message we sent during the negotiation over process (the shape of the table) created an opportunity for them to miscalculate the firmness of our position.

The lessons learned will carry over from process negotiations to substantive negotiations. This can lead to miscalculation, impasse and failed negotiation if one side is resolute on a particular substantive issue, but has submitted to the other side’s wishes regarding process issues during the course of the negotiation. The party giving a double or “mixed” message engenders confusion. That party will appear to be inconsistent, wishy-washy and unreliable to the other side. To be an effective negotiator, you should be consistent in your negotiations of substantive as well as process concerns early in the negotiation—if you mean NO…SAY NO! If you mean MAYBE.…SAY MAYBE! If you mean YES…SAY MAYBE! (There is usually time and opportunity to move from maybe to yes when the remainder of the deal satisfies your expectations.)