Yes-O-Phobia, A Barrier To Quickly Negotiating Agreements

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Yes-o-phobia: The fear of saying yes, often in the course of negotiating agreements. Usage example: “No.”

This phobia is more prevalent among those new to their field or job, but not exclusively to lesser experienced negotiators. It is also much more common among lower level staff than it is among principals or senior management. That’s because fear on the part of the phobicis not so much fear of giving up complete control over whatever may possibly happen in the future as it is a fear of being criticized by a superior. In law firms, “senior” partners, almost always, are willing to say “Yes” whereas newly minted attorneys and newly minted partners are commonly reticent.

And, if Ruminations is accurately hitting on a major reason why negotiations take too long and needlessly get people agitated, then why don’t we do something about it? One answer is that the side receiving the “No” is also afraid to say “Yes” when it comes to its turn to be realistic and reasonable. A more significant answer is that the side receiving the “No” has no ability to address the “real” issue, i.e., to address the organizational climate within which her or his counterpart is operating.

We’ve used this example before. What’s the difference if the “Event of Default” happens three days or ten days after the date a payment became due? Would any landlord evict a tenant because the rent frequently arrived five days late? Only those with yes-o-phobia would insist: “Yes.” The reason is because the landlord’s negotiator (in this example) would hear only one of the following three comments (criticisms?) from the boss: (a) that was a smart thing to do, giving the obligee 10 days; (b) nothing at all; or (c) why did you go out and do that, don’t you know we only allow three days? Readers, which one is the one that no one ever hears?

Perhaps those negotiating leases or loans for others should do their homework before starting the process. By homework, we’re thinking that we should all have an open discussion with the ultimate decision makers to find out in advance what items are truly not negotiable other than by the opposing decision makers. Within law firms, this is more easily done than within most business firms. Junior legal staff should be able to ask senior legal staff: “do we really care if it is 10 days instead of 3 days” instead of fearing that it will. It might make sense in firms with “departments” for this to be the subject of department meetings. Although attorneys like to think of themselves as independent thinkers and fully able to work through almost everything without external assistance (because to ask for this kind of permission might suggest a “lack of ability”), this approach hurts clients. Similarly, within businesses, negotiators of repetitive-type agreements fear that asking “permission” [which we would laud as “getting accurate instructions”] indicates incompetence.

It isn’t that the fear of saying “Yes” isn’t “rational,” but we’re suggesting that it’s often “rational” in the sense that it puts the interests of the negotiator over those of the principals. “My job or position is more important that the interests of the person I represent.” There is nothing unexpected or evil about this. After all, it allows all of us “to live another day.” But, shouldn’t some efforts be made to reconcile both interests? We’ve already suggested that negotiators work on getting defined boundaries within which to work. We would also suggest that negotiators readily admit when some issue (even a possibly trivial issue) is “above one’s pay grade.” There shouldn’t be a lot of shame in telling one’s counterpart that such and such issue is not one within your bailiwick to resolve (even if you are the bailiff) at that very point in time and that you’ll get back to her or him later.

By no means is Ruminations suggesting that “fear of disapprobation” is the only impediment to saying “Yes” when “Yes” should be said. In earlier musings we’ve suggested that instead of saying “No” when one doesn’t understand an issue (often the specific laws or physical constraints involved), a negotiator should confess that she or he needs to review the law or the circumstances and get back with a response later. It isn’t a weakness to know and admit that you don’t have an answer at any given moment. It is a strength that shows respect for the issues at hand and for the other person in the conversation. In the purported words of Socrates of ancient Greek fame: “Admitting one’s ignorance is the beginning of wisdom.”

This topic begs for input from readers. Do you agree or disagree? Is what we’ve written a central understanding of why we don’t hear a “Yes” when a “Yes” is the appropriate response or is it only a scratch on the surface? Tell your colleagues what you think by adding your thoughts in the place below provided for comments.

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Comments

  1. Fred Kruck says:

    I agree – there is nothing wrong, and certainly no weakness shown, by simply stating “I don’t know; I’ll look into it and get back to you.”

    One of my clients — actually one of my favorite individuals to work with — used to insist that I was the smartest lawyer he worked with. (Those who know me understand that this is preposterous.) When asked why he could say something so obviously wroing, he would merely reply. “You know what you don’t know.”

    Although he was a lay client, he taught me a lot about practicing law, dealing with clients, and negotiating with others. And he would agree (as I do) that your column is spot-on and should be read by everyone stepping into any kind of mediation, contract negotiation, or other resolution-based matter.

    Keep up the great writing!

  2. Ira, generally what you have said here is spot on truth. I have more respect for a lawyer who says “You know, I don’t know the answer to that but let me check in with others and I’ll get back to you.” And i am also sometimes in the same position, I have no shame or embarrassment in saying so (as I did as a young inexperienced lawyer afraid to look bad). A problem which hamstrings younger attorneys who are willing to say “yes” are the restrictions placed upon him/her by the senior partner or the client -“we never agree to that”) – even though there is no real business or legal reason for not doing so. It takes an attorney who has gained the trust of his senior partner or client for arguing the reasonableness of the other fellow’s proposal or for telling the partner or client when its position is unreasonable.

  3. Henry Pharr III says:

    Another great article Ira. And certainly the discussion here is pertinent to all those who are involved in negotiations, especially LAWYERS!

    You bring up two important points in the article that are key to effective representation. I agree with Fred and Joel that the best way to handle an issue that is “not in your wheelhouse” or for which you have received no clear direction from the client is to say “(L)et me me look into that issue. Let’s hold that for now and move to the next topic.” Often as attorneys we have a fear that such comments will be perceived as a sign of weakness, or worse, stupidity. And certainly nothing could be further from the truth. The best negotiators I have worked with use this technique all of the time.

    The second important point you discuss is where you reach a topic where you believe your client is dug in and won’t change their minds. I would agree the best pre-planning for these moments is to have a discussion with the client before the conference call or meeting and find out what terms they feel strongly about and which they don’t or would trade out for concessions by the other side. Often if a client comes back to me with a draft dripping in red ink, I will ask them “which are the 4 or 5 most important issues to you in this deal.” Inevitably this gets the ball rolling towards the ultimate goal of identifying your client’s key issues and getting the deal done!

    The takeaway here for negotiators is listen to your client closely, guide them using experience, and keep your eyes on the prize of reaching global agreement on the contract terms.

  4. Two points. First: Lawyers all too often feel a necessity to weigh-in on business points that are not their responsibility. They should learn to say, “This is not a legal matter and you need to take that up with the Tenant/Landlord rep”.
    Secondly, a curse to those Supervisors who believe they need to demand subordinates ‘go back’ and improve a deal, These officious superiors are often the creators of the Afraid-to-say-Yes phobias. A dealmaker makes deals within the parameters provided by management. If they have been unable to keep the parameters then they should explain why and the deal either dies or continues forward. If a dealmaker is making bad deals, don’t let them make deals or provide more training. The ‘going-back’ and improving the deal is a no-win situation for the subordinate. If they can do it, they are undercut; if they can’t do it their boss may decide the deal dies as ‘bosses-way’ not accomplished.

  5. I think the seminal point in this article is people say no because they are not prepared – they don’t know what they don’t know, as one commentator eluded to. Often, “not prepared” is not a bad thing or a criticism. The younger associate does not know enough or isn’t familiar with the client to decide what is important and what is not. As the article mentions, there is a solution to not being prepared – ask someone! Always touch base with the client. Ask someone who is familiar with the client, or a senior partner who is knowledgeable. And, as other commentators have mentioned, there is absolutely nothing wrong with saying, “I don’t know – I will get back to you.”

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