On Win-Win
Finally, something should be said about the whole win-win negotiating construct. If the other side says, we're looking for a win-win deal, the only possible response is, yes absolutely. And to the extent that understanding what the other side wants helps us get what we want, that is true. But the fact is that most deals do not turn out as win-win. Anyone who tells you otherwise is naive, inexperienced, or lying. Deal with this as you think best.
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I have always been leery and skeptical of win-win negotiating, and suspicious of those who espouse it, particularly for residential real estate transactions. I remember reading the win-win bible, Getting to Yes19 back in the Nineties. Brought to us by the super-smart academics at the Harvard Negotiation Project. I found it unsatisfying and terribly naive despite, as Jim Camp describes win-win, its omnipresence in our culture. Certainly Getting to Yes is omnipresent in negotiating circles.
We will come back to my concerns in a minute. For now let’s turn to Camp, the primary opponent and skeptic of win-win, and his own work on negotiation fundamentals and strategy, Start with No.20 Camp offers an alternative to the win-win ideal. I am not sure if Camp intended his title to be a reproach to the Harvard title, Getting to Yes, but I always read it that way. Harvard: Getting to Yes; Camp: Yeah well, Start with No. I love it.
Before you even crack the book open, right there on the jacket we find a nice summary:
For years now, win-win has been the paradigm for business negotiation – the fair way for all concerned. But don’t believe it. Today, win-win is just the seductive mantra used by the toughest negotiators to get the other side to compromise unnecessarily, early, and often. Have you ever heard someone on the other side of the table say, “Let’s team up on this, partner”? It all sounds so good, but these negotiators take their naive partners to the cleaners, deal after deal…Win-win plays to your emotions. It takes advantage of your instinct and desire to make the deal.21
You can immediately see how the win-win strategy would appeal to real estate brokers. It’s just so friendly and fair and not intimidating; and more importantly for brokers, facilitates a quick and easy deal. No doubt Fisher and Ury and other win-win proponents would argue, but that is not the purpose of our work. Perhaps not, but any experienced negotiator will tell you, that is how it is used.
Here’s Camp:
The unspoken – or sometimes spoken – assumption behind win-win is that people enter negotiations trying to build friendly relationships and want to leave with that relationship intact. The classic win-win dilemma is this one: How much money do I have to leave on the table in order to maintain this relationship? Big-time corporate negotiators, along with many others, play this game to the hilt. They play up the importance of partnerships, loyalty, the long term – emotion-based stuff. How could you endanger such benefits by holding the line? But their only real concern is the price they’re paying.22
In other words, savvy, and yes some predatory, negotiators take advantage of the naïveté of the win-win crowd. And they play them for saps.
Returning to my own thoughts on win-win negotiating, I just find that it is not very practical. Typically one side cares more about a deal than the other. One side has more experience or greater preparation than the other. One side has a Client Acquisition broker and the other has a Conveying Real Property broker. One side is accommodating and easy to deal with; the other not so much. One side wants a quick and easy deal done by midnight; the other side is more deliberate. One side talks too much and the other side asks clever questions. One side has a business savvy broker with good technical skills, the other does not. You get the point.
So in my experience, the only way to arrive at a win-win deal is when both parties are equally balanced between wants and desires, experience, preparation, command of platform, understanding of due diligence, and general negotiating competency, etc.
And how often does that happen?
Stop. Really, think about this: How often does that happen?
If you are in the superior position with the proper attitude, or you are the more accomplished or prepared negotiator, are you going to give up your position or experience to merely accept a win-win deal? Remember as a fiduciary, it is your job to get the best deal for your client while also protecting their interests, and maintaining your principles and integrity. That is your job. That is competent negotiating.
Now let us not forget Jim Camp’s point, that many very savvy negotiators who advocate for a win-win deal just want to take advantage of a less-savvy counterpart.
That means that there are three types of negotiators who bring up win-win. First, those naive enough to really believe in win-win. Second, the predatory types who want to take advantage of a not-so-savvy counterpart. And three, the script-readers who have given very little, if any, thought to the concept, but have been taught that win-win works well (sounds good) in a script.
Let us forget the first and assume that every time we hear the words win-win, we are dealing with the predators or script-readers. So when we hear win-win, it becomes a red flag. Give them a yes absolutely. Then ignore it. And do everything we have discussed in this section.
I have found that the predatory types are typically not as savvy as they think they are – Certainly not if they are merely looking for an easy route to take advantage of their counterparts. Certainly not once we recognize the win-win shtick. Allow them to underestimate you; they do so at their peril. As I said at the end of our chapter Always Be Nice, by the time they realize who they are dealing with, it’s all over.
Yes, sometimes we see the predators in residential real estate negotiations. But a more common dynamic is this: On the one side, pushy script-readers with their rush to close, quick and easy, all the while talking a good win-win game. And on the other side, calm, deliberate, prepared, competent negotiators, never insulted or emotional, who don’t care too much, and call back the next day.
In which case, the odds of a win-win deal are practically zero.
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19. Roger Fisher, William Ury, and Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In, Second Edition. Houghton Mifflin, 1991.
20. Jim Camp, Start with No: The Negotiating Tools That the Pros Don’t Want You to Know. Crown Business, 2002.
21. Ibid, dust jacket. Is there a formal procedure for citing a book’s dust jacket? I am not sure. I am also not sure who wrote the jacket copy. The author? It is doubtful. Probably some Random House employee (Crown is an imprint of Random House). In any case, this little blurb serves us well here.
22. Ibid, page 61.