In-House Counsel

Negotiation With Sherlock Holmes And His Assistant … Sigmund Freud?

The art of negotiation is a tricky business, but these two can help you out.

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Someone once said that a good negotiator should be a mix of detective and psychologist. Victor Kiam put it like this: “A negotiator should observe everything. You must be part Sherlock Holmes, part Sigmund Freud.”

There is some truth to that.

Sherlock is the shining example of deductive reasoning, while Freud is known as the father of psychoanalysis. Put them together and you have a highly attentive individual who is acutely aware of people’s feelings and desires, in addition to being able to use impersonal observational cues for drawing logical conclusions. Someone with a sharp enough wit can cut deals like no other.

Conventional negotiation tactics can be categorized into two approaches: the standard approach developed by the Harvard Negotiation Project and the alternative method codified by former FBI negotiator, Chris Voss.

The former relies a lot more on the Holmes approach and is centered around the idea that people are rational and focused on their own needs. As a consequence, negotiators should not associate the people with the problem, treating them as separate entities. Negotiators should then employ deductive reasoning to find the motives behind the opposing party’s position.

With that in mind, they should work towards a win-win situation. They do this by allowing for a scope within which they can settle — the zone of possible agreement (ZOPA) — and even have a backup plan in the event of failure, which is known as the best alternative to a negotiated agreement (BATNA). These acronyms are basically just a cool way to say you have contingency plans, but they are invaluable in preparing for and dealing with the negotiation process.

On the other hand, the techniques developed on the job by FBI hostage negotiators are a little different. As psychologist Daniel Kahneman has established, humans are not all that rational. We tend to think, speak, and act in a manner that is usually directed by our emotions. Hence, the new method centers around that idea, relying on understanding people’s emotions and empathizing with them.

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Like the Freudian method, it involves truly listening (a superpower in all walks of life) and responding in ways that build rapport and persuade the other person to show you what it is they want. The FBI couldn’t afford to make mistakes or rely on a plan for failed negotiations. They had to succeed every single time, which reminds me of the attitude of some lawyers I know.

Nevertheless, the problem is not that humans are irrational beings (and it’s not that they’re rational ones, either). The problem is that they are both, not entirely either one. The art of negotiation is a tricky business — ask anyone who is married or, better yet, has kids! It is a dance that requires flexibility without giving way. It demands that you keep all your wits about you and that you fully understand the steps, the tempo, and how to lead.

What is your general approach to negotiations? Are you more in line with Sherlock Holmes or Sigmund Freud? Or, perhaps, with someone else entirely?

Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack

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