Imagination is key to successful negotiation

There's a classic exercise that's taught, in one guise or another, in schools of negotiation around the world, to help students consider the importance of imaginative problem solving and communication.

In this iteration Party A, 'Grow Co.', is negotiating with Party B 'Flower Power LLP', and you represent one or the other. Let's say you're for Flower Power LLP and you're told that the other side - Grow Co. - has land rights over a very valuable bit of land where a very rare type of plant grows. Flower Power LLP, your client, very much wants to buy these plants and use them for some sort of commercial enterprise. Grow Co., at the same time, have commercial plans of their own for their plants, and are rather unwilling to sell them to you. Your task advising your client is to enter into negotiations with the advisors for Grow Co. to see whether you can agree a competitive price for these plants.

Other people in your class are allocated to Grow Co. and given the mirror set of instructions; be reluctant to sell and see how much you can squeeze out of Flower Power LLP - logically it has to be more money than you can make by using the plants for yourselves. Sets of students then go off to their respective negotiating rooms or tables and try to hash out a deal.

After a suitable time the teacher gets everyone back together and asks how the negotiations went. Many students struggled; either Grow Co. are asking for an absurd amount and/or Flower Power LLP are offering far too little. It seems like a classic impasse because at a basic level it's just two entities battling over the same thing, which is a hard problem to solve.

However, there are some sets of students in the room who are sitting rather more happily and are pleased to report that their negotiations went very well. Strangely, their counterparts say the same - for every happy Flower Power LLP there's also a happy Grow Co. How did they do this? How did they find a number that satisfied both sides, when the other students did not?

Well of course what was hidden behind door number 3 was key to it all. Some students discovered that two two sides want different things - Flower Power LLP want the flowers of these plants and Grow Co. want the roots, so all that needs to be agreed is how to share the different parts sensibly.

The lessons are clear; the students who failed were those who didn't take the time to imagine that the other side might want something different, might have different priorities, might have a different problem to solve than their own. Imagine yourself in the other person's shoes. Imagine the different uses for the thing you are negotiating about, and so on and so on. And of course, there's the value in being open and straightforward in what you want and why, and in asking questions about what the other person wants as well.

To reach an accord you need to solve the other person's problems, not just solve your own, and to do that, you need to understand what those problems are and imagine how they might be solved.

It's a great exercise and one that's stuck with me since law school, for good reason. But there's another type of imagination that gets a lot less attention and that's just as important.

A failure to engage your client's imagination is often a sure fire way to ensure negotiations will fail.

The imagination I'm talking about is something nobody ever taught me in law school, and it's not something I've ever really seen or heard discussed since. The imagination is not your own, but your client's. A failure to engage your client's imagination is often a sure fire way to ensure negotiations will fail.

Clients frequently show a fixed mindset. I want to keep the house. I want to keep my pension. I want the kids at Christmas. I'm not paying a penny in maintenance. I won't back down, I won't budge.

It's all too easy to forget that you don't have to take what your client says they want as gospel, and what they tell you they want isn't automatically the target outcome.

Why does your client want to keep the house? A fixed mindset is often rooted in something underneath what's said out loud. The house isn't just a house. It might be a sense of security, a fixed point in a sea of change, something tangible in a way a pension or a savings account isn't, or a prompt for memories of children growing up.

These often aren't reasons someone will necessarily admit or even indeed understand about themselves, and they can be so powerful that they present a barrier to progress - reasons to actively resist even thinking about selling the house. But until such understanding emerges about why a person has set themselves a particular target, it will be hard to get them to switch focus onto something else.

This is where the active imagination exercise is so important.

It's all well and good for you to be able to think creatively and imagine the options for your client - they could downsize, move to a different neighbourhood, get a mortgage to combine with savings or net equity, buy a tiny house in the countryside, whatever it might be - and even to explain those options to your client. But unless and until your client not just receives the information from you, but engages imaginatively with the different options for the outcome of the negotiations, everything that departs from their fixed view will fail to crystallise and never seem realistic. Just more noise, more overwhelming and threatening choices to make in an upsetting situation.

In the active imagination exercise what can happen - crucially - is those same key reasons for the fixed target can be seen in an alternative option. Your new house, chosen by you and nobody else, bricks and mortar, decorated by you, where your grandkids will be raised, a place you can feel safe and secure, is possible. Maybe you don't need new flowers, you need new roots.

We need to understand our clients and their motivations, but they need to understand themselves as well. How many advisors fail to even appreciate they have the opportunity to help their clients do this?

I've seen this problem manifest many times. A recent example was a negotiation day (FDR), supervised by a neutral judge, where precisely this issue of selling the family home after the end of the marriage was in issue. Our client had been saying for weeks and months that the house needed to be sold as it wasn't affordable to keep it, but the other client just wouldn't accept this. Then at the negotiation day the judge said the same thing - just not affordable, has to be sold - and everything ground to a halt. The reason? The mental work hadn't been done (and this despite the practical work being done; with even alternative property listings for where to move to being provided by the other client's lawyers) and so the only option the other client had prepared for was their fixed idea - staying in the house - to the point of emotional shut down when the reality finally hit home. The fixed idea was not going to happen, and there was, in a meaningful sense, no alternative that client was able to consider. Emotional shut down; end of negotiations.

The options realistically available all need to have at least some sense of reality attached to them before they will actually present as possible choices your client can make. Look at this house in this neighbourhood - will this work? Where are the local shops, where's the train station, where's the nearest restaurant? What will it be like to wake up in the morning and walk into this kitchen? This is a fresh start, a new chapter, call it what you will, but part of our task in advising our clients has to be supporting them to do the mental work of not just identifying, but making real the choices that lie ahead.

A great - and deceptively simple - way to do this is to tell the clients exactly what I've set out above. Show them behind the curtain, so to speak; tell your client explicitly that this idea of imaginative engagement is a key part of the work they need to do to help themselves. Share my example from the FDR. Tell them explicitly why it's part of your job sometimes to challenge them to put down their fixed idea and to pick up other options, feel the weight of them, and for a while just give some colour to that new chapter.

This is easy for us to say and hard for them to do, but it's hard work that has to be done, and until a client knows this is what they need to do, they will lag behind in the process of moving forwards. If there are three or four or however many options for how the negotiation might go, then the client's work is to take the time to go through each of those, deliberately and often bravely, and see how they feel. Our work is to help them to understand this needs doing, and support them to know what to engage with.

Ultimately as advisors our role is to help our clients make choices that will improve their lives. Sometimes that involves challenging the client who tells us so definitively This Is What I Want to use their imagination to consider that actually, they might want something else.

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I am a family law barrister, mediator and consultant. My legal services are offered separately via my chambers website here.

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Today's recommended track is Feel Alright by Avi Kaplan.

Today's nice image is from Yayoi Kusama.

Today's recommended article is about survivorship bias.

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