All my professional life I have worked with barristers, the people you see in English courtroom dramas on TV or films who wear the funny-looking wigs and gowns.
It is a profession steeped in tradition. One tradition is that barristers do not negotiate their own legal fees. This is done for them by their clerks (basically their agents). The typical scenario is that the client will ring the clerk, explain what they need the barrister for, determine if they are available to take on the case, and then ask how much it is going to cost them to instruct that barrister. There can be a lot of variables and unknowns at this point, so it takes a skilful clerk to negotiate the best fee for the barrister.
The three keys to successful negotiation
I met a retired clerk (let’s call him John) who had a reputation for being one of the best clerks at the Bar, judging by the phenomenal fees he was able to negotiate for his barristers. With such a reputation I expected to meet someone who was larger than life, slightly aggressive, extroverted, and super-confident. To my surprise he was very softly spoken, deferential and cheerful with impeccable manners. I was totally thrown. I had to ask him: What made him one of the best negotiators at the Bar?
“I always did three things when I was negotiating”, he told me. “I was polite, I listened carefully, and I always held a silence after I made the first offer”.
He went on. “I would make sure that I would state my case and offer the rationale behind the fee I was suggesting before I mentioned the price. After I said it would cost “x” amount for the barrister’s services I would be quiet and just leave it with the client. More often than not I would get the amount, or very close to the amount, I was asking for.”
I then was fortunate to meet a client who had been on the other side of John’s negotiations. I asked him what made John so successful. He repeated exactly what John had told me, especially the fact that John always held a silence after he offered the fee.
“It was slightly unnerving”, he admitted. “He would say how much he wanted and then say nothing else. He just went quiet. I felt I had very little room for manoeuvre. He had already stated his case, covered all the reasons why I should pay that amount and why the barrister was worth it, and he did it with such confidence, like he had really given it a lot of thought. He also said it with such good grace and manners that I thought he couldn’t possibly be pulling a fast one on me. So, more often than not, I agreed.”
Holding silence
Why is holding a silence after making an offer, or counter-offer, so important in negotiations? Here are just three reasons. It:
- Adds power to the offer
Imagine if you were to say, “I’ll give you £50 for that bike. How does that sound?” Any qualifying language following the offer reduces its strength and suggests that the offeror is unsure of the offer themselves. - Allows the other person time to think
Explaining your reasons after you make the offer can sound defensive. “I’ll give you £50 for that bike and here’s why”. Make your offer and then be quiet. It gives the other person space to be thoughtful about their response to your offer, and it allows your offer to sink in and clarify. - Makes you look well informed
Holding a silence after your offer gives the impression that you are very sure of your position and have given it a lot of thought, especially as, like John, you explain your reasons for the offer before you make it.
But what about using silence elsewhere in a negotiation? You should hold a silence when hearing an offer before you counter-offer, for similar reasons. Waiting to make a counter-offer, rather than responding immediately, suggests that you are taking the offer, and the offeror, seriously.
Get comfortable with the uncomfortable
But hang on, you may be wondering, if the offeror is silent after making the offer, and the offeree is advised to stay silent after hearing the offer, then what? The negotiation stalls! No one is saying anything!
Silence can be really uncomfortable, but it is powerful. And that’s the point. The offeror should hold their ground and not be tempted to fill that silence by saying things like, “What do you think?” or “How does that sound?” They could merely say something like, “If you need time to think about it, by all means take your time.” Eventually the offeree will respond.
Finally, it’s important to note that, in general, the person who speaks the most in a negotiation does not necessarily get the best deal. Careful listening, like silence, in a negotiation is golden. Stay quiet and listen. Do not feel the need to fill the silence. Indeed, in their urgency to fill the void in the conversation, your negotiating partner may reveal critical information.
A senior corporate lawyer at a top UK law firm said that the best advice he was ever given was, “Remember that when you are in a negotiation, you were given two ears, but only one mouth, for a good reason.”
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