A lawyer's guide to strategies for negotiating with toddlers (and other tough negotiators)

There are ways to tame even the toughest negotiator (or tyrant toddler), writes this litigator

Natai Shelsen

As a litigator and a mediator, I’ve gone up against some tough negotiators. But no one compares to my 3-year-old twins. They are unreasonable, stubborn, self-interested and unpredictable. In short, they exemplify all the hard-bargaining tactics that my training and experience have taught me to avoid.

Sheltering-in-place during the pandemic with two little dictators has provided no shortage of things to negotiate (read: argue/threaten/cry) about. It’s been good practice for my day job. In fact, parenting during the pandemic has taught me more about avoiding and managing impasse than nearly a decade of practice.

Here are some of the negotiation strategies I’ve been honing from my home office:

Establish (and maintain) credibility

It’s simple, really: if people (or your kids) respect you, they’ll listen to you.

Credibility is the cornerstone of persuasion, and it’s crucial in negotiations. The more credible you are, the more weight your words will carry and the more persuasive you’ll be. If you’re credible, your counterpart will trust you when you say that the deal you’ve offered is the best you can do, or that certain terms are simply unacceptable. If you’re not credible, your counterpart may not believe that you’ve hit your reservation point, which could lead to impasse.

In negotiations (and in parenting), it’s important to establish credibility from the outset. You gain credibility by treating your counterpart with respect, being reasonable, explaining your position and maintaining your ethical standards. You can lose credibility by using hard-bargaining tactics, making extreme demands and engaging in unethical or shady behaviour.

The risks of failing to establish or losing credibility can be enormous. In parenting, for instance, if you make a threat you can’t back up, your kid will learn that they can get away with their bad behaviour. In negotiations, if your bluff is called and you can’t follow through, you risk losing any gains you’ve made (and the deal).

Be empathetic and assertive

Sometimes your counterpart (or your kid) will take a position that you find entirely unreasonable. In parenting, this usually results in a standoff (or, worse, a tantrum). For negotiating parties, it can result in impasse. So, what do you do?

Show empathy while remaining assertive. In Beyond Winning: Negotiating to Create Value in Deals and Disputes, renowned negotiator Robert Mnookin explains that empathy and assertiveness are the foundation for effective problem solving. In practical terms, this means listening and demonstrating an understanding of your counterpart’s perspective, while still advocating for your own perspective. Harvey Karp, author of the best-selling parenting book The Happiest Toddler on the Block calls this concept the “fast food rule” (because your fast-food order is always repeated back to you). He encourages parents to acknowledge and label their child’s emotions with respect before explaining why their behaviour is inappropriate.

Most lawyers have no trouble asserting our positions — it’s the empathy part that we struggle with. We listen to the other side only for the purpose of developing a “yes, but” response, rather than for the purpose of truly understanding. Mnookin suggests using the “empathy loop”: You begin by inquiring about an issue. The other side responds. You then “loop” back your understanding of the response and give the other side the opportunity to confirm or correct that understanding. You repeat the process until the other side confirms that you’ve understood. You only advocate your perspective once you’ve accurately “looped” the other side’s perspective.

Whether you’re negotiating against opposing counsel or trying to convince your kid that they can’t have chocolate before bedtime, acknowledging your counterpart’s perspective can help to avoid impasse (and screaming matches).

Ask questions

Kids also have something to teach us about how to approach negotiations.

Toddlers are curious creatures who ask a million questions a day. “Where does my food go after I eat it? Why do you have hair in your nose?” And then there’s the most dreaded question of all: “Why?” There’s no doubt this is amongst the most exhausting toddler habits but it’s also an important developmental process: kids ask questions to understand and make sense of the world.

Asking questions is a fundamental aspect of negotiations because the negotiation process is, above all else, an information-gathering exercise. Your goal is to figure out the interests underlying your counterpart’s position (to make sense of their world, so to speak). In Getting to Yes: Negotiating Agreement Without Giving In, Roger Fisher and William Ury explain that understanding your counterpart’s interests enables you to “expand the pie” and explore opportunities for mutually-beneficial trade-offs. Asking open-ended questions — particularly “why?” — helps you to do that.

Asking the right open-ended questions can also change the power dynamic of a negotiation and force the other party to see things from your perspective. Chris Voss, author of Never Split the Difference, calls this asking “calibrated questions.” These questions begin with “How?” or “What?” (“How am I supposed to do that?” “What’s going to happen if I do that?”). Calibrated questions allow you to introduce ideas and requests without being confrontational or pushy, and they force your opponent to acknowledge the challenges presented by their position. Next time your kid asks if they can stay up past bedtime, try asking “What’s going to happen if you do that?”

They say that, in negotiations, the most unreasonable person in the room usually wins. This can be true for screaming 3-year-olds. But there are ways to tame even the toughest negotiator (or tyrant toddler). By establishing credibility from the outset, truly seeking to understand your counterpart’s perspective and asking open-ended questions, you can move negotiations forward and avoid impasse (and maybe even a tantrum or two).

Natai Shelsen (Q.Med) is a mediator and litigator at Goldblatt Partners LLP in Toronto. She helps resolve employment, business, Aboriginal and human rights disputes in Ontario and Quebec. And while you may not be able to tell from the tone of this article, she thinks her kids are great.

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