Module 1
What a negotiation really is: positions, interests and the shape of the deal
Most lawyers are trained to argue. A negotiation rewards a different skill: working out what each side needs, and building a deal that gives it. This module gives you the map: what a position is, what an interest is, and why the difference changes what you do next.
By the end of this module you can
- Tell a position (what someone says they want) from an interest (why they want it).
- Ask three kinds of question that bring interests to the surface without sounding like an interrogation.
- Recognise when a deal is about dividing an amount and when it is about creating more value.
- Find your own client's real priorities before you negotiate for them.
Part 1. The lecture
Two pictures of a negotiation
There are two ways to picture a negotiation. In the first, there is one thing to divide, a price or a sum of damages, and every pound I win is a pound you lose. Negotiators call this distributive bargaining. It is the picture most people carry, because haggling in a market looks like this.
In the second picture the parties care about several things, and they do not care about them equally. A buyer wants a quick delivery, a seller wants a quick payment, and neither of them minds the colour. Moving a little on what each cares less about can leave both better off. Negotiators call this integrative or value-creating bargaining.
Almost every real negotiation contains both. There is a part where you divide (the price, in the end, goes up or down) and a part where you can create (the timing, the guarantees, the payment terms, the relationship). The mistake is to treat the whole thing as the first picture, because then you leave the value in the second one on the table.
A quick test
Ask: is there more than one issue, and could the two sides rank them differently? If yes, you are in a deal that can be made bigger. A pure single-price haggle is rarer than it feels.
Positions and interests
A position is what a person says they want: "The rent must not rise by more than three per cent." An interest is the reason underneath: "I have to show my bank a stable cost for the next five years." Positions are narrow and often collide. Interests are broader, and several different positions can serve the same interest.
This matters because people defend positions hard and can often be flexible about interests. If the tenant's interest is a predictable cost, a fixed rent for three years followed by a capped rise may serve it better than a flat three per cent. The landlord, whose interest may be rent that keeps pace with the market, might accept it. Neither position would have found it.
| Position (what they say) | Possible interest (why they say it) |
|---|---|
| "We will not pay more than $50,000." | The budget was approved at that figure and needs more sign-off to change. |
| "We need exclusivity." | Fear that the other side will sell the same thing to a competitor next door. |
| "The contract must be governed by our law." | The client's own lawyers cannot advise on foreign law and the board wants no surprises. |
| "I want an apology." | A need to be taken seriously and to know the same thing will not happen again. |
None of the interests in the right-hand column is certain. They are hypotheses to test with questions. The skill is to hold your guess lightly and let the other side correct it.
Three questions that find interests
You rarely learn an interest by asking "What is your interest?" People do not think in those terms, and the question sounds like a trap. Three plain forms do the work much better.
- The purpose question: "What would that give you?" or "What is it that you are hoping this will do?" It turns a demand into a goal.
- The worry question: "What concerns you most about the alternative?" or "What are you trying to avoid?" Fear is a stronger signal than hope.
- The what-if question: "If we could solve the delivery date, would the price still be the problem?" It tests whether the stated issue is the real one.
| Instead of | Try |
|---|---|
| “What is your final position?” | “Help me understand what would make this work for you.”"Final position" invites a stand. The second form invites an explanation. |
| “Why are you being so unreasonable about the warranty?” | “What is it about a one-year warranty that worries you?”The same issue, with curiosity in place of accusation. |
| “That is not possible.” | “What would have to be true for that to become possible?”A flat refusal ends the exchange. The question keeps the other side explaining. |
Ask one question at a time, then stop talking. Silence after a good question is where most of the information appears.
Your own client's interests
Lawyers often negotiate for the client's stated position without testing it. A client says "I want a higher price" and the lawyer pushes for a higher price, when what the client really needs is to be paid before the end of the quarter. Before you ever sit down, have the same conversation with your own client that you intend to have with the other side.
- List the issues, all of them, including the ones that look small. Small issues are often where a trade lives.
- Rank them with the client: what must we get, what would we like, what could we give away at little cost?
- Ask about the relationship. Will your client deal with this other party again? That changes how hard to push.
- Ask about the audience. Who else must approve the deal, and what will they ask? Your client's boss, bank or board is part of the negotiation.
In practice
A founder instructs you to "get the highest price for the business." Asked what a good outcome looks like, she says she wants to stay on for a year to protect her staff, and she does not want to be bound by a long non-compete. The price matters, but the interests are about her people and her future. They change which terms you trade.
The table behind the table
The person across from you is rarely the only decision-maker. They have a boss to satisfy, a budget to defend, a colleague who will judge them. This "table behind the table" shapes what they can say yes to. A deal that is good on paper can still fail because the person across from you cannot sell it internally.
So a useful question is not only "Would you accept this?" but "What would you need in order to take this back to your team?" That question tells you what the other side's audience cares about, and it lets you help them build their own case for yes.
Part 2. Lab: Interest Digger
Six people state a position. For each, choose the response most likely to bring out the interest underneath. Two points for the strongest, one for an acceptable one.
Situation 1 of 6
You act for a software supplier. The customer's procurement manager says: "We will not accept any limit on your liability. None."
What do you say?
Part 3. Check your understanding
Ten questions drawn from a larger pool. Sign in to have your score saved towards your certificate.
General education on negotiation technique, using invented people and figures. It is not legal advice, and professional rules on honesty, authority and disclosure differ from country to country; check those that apply to you.
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