Most negotiators understand the basic premise that a contract is a decision that you’ve agreed to, usually in written form. But what happens when a question comes up? Two parties often want that question answered differently.
You both refer to the agreement that you made. You know you’re bound by that agreement. The question, then, is how you interpret those words and understand what you agreed on.
In episode #311 of Negotiations Ninja, Joel Trachtman emphasizes that arguments about nuances in contracts happen all the time. With legal argumentation, there are multiple ways to interpret statutes, contracts, and treaties. There is a list of interpretative devices you can choose from to make you successful.
The various interpretive devices you can employ
Joel always starts with the plain meaning of words. But you can use different dictionaries, different meanings of words, etc. Another way of interpreting words is by original intent. What was intended when you said something? You may have used words without strict precision. What was the context in which you said it? Is your list illustrative, or just limited?
If a sign says, “No canoes, rowboats, or motorboats on this lake” you could argue that you could have kayaks on the lake. However, you understand that they really meant that no boats were allowed on the lake. There is always a counterargument for every argument.
Develop a list of arguments and counter-arguments
If you have a contract that you agreed on and you’re fighting about it, what kinds of interpretative arguments can you bring? What kind of arguments will they bring? How would they counter your arguments and you counter theirs? You develop a list of arguments and counter-arguments so you’re ready to respond, make your argument(s), and convince the counterparty.
What do you do if someone isn’t acting rationally?
This is assuming that the other person is a reasonable and rational person. They understand what you’ve agreed on before and are open to reasonable arguments about how you understand what has been said before. You can use that rationality to your advantage.
Negotiations involve rationality and irrationality and desire. You can appeal to emotions and logic. Each counterparty is driven by a certain amount of passion and a certain amount of logic. If you’re fully focused on logic but your counterparty is passionate, your argument won’t land. But if they’re partly governed by logic, it may help you convince them of your position.
If you can’t win on substance—argue procedure
In legal and rational arguments, you can argue about the substance of a thing or the procedure. If you think you’ll lose on substance, you can argue procedure. How? You can say things like:
- “This isn’t the right form”
- “It’s too early to make a decision”
- “This is too political”
You can state that a decision-maker is impaired or biased and shouldn’t be making decisions. You can tip the burden of proof and say, “It’s up to you to prove that you’re right.” It can be hard to reach proof of anything, so if you shift the burden of proof to your opponent, you can win. These are procedural ways of avoiding decisions.
A lawyer friend of mine once said, “I don’t have to prove that I’m right—I just have to prove that the counterparty is wrong.” By default, you become “right” in the eyes of whoever is adjudicating the case. It means that the burden of proof is on your counterparty.
You want to analyze your opponent’s argument and find the loose thread—every argument has one. The person making the argument doesn’t want it exposed. If you can find that loose thread and pull on it, you can win. If you can destroy their argument—even if yours isn’t right—it makes it easier for you to make your case.
To learn more about how to frame an argument, listen to episode #311 of Negotiations Ninja. Lawyer and professor Joel Trachtman shares some amazing insight into the negotiation process.