SLT is pleased to welcome back Daniel Gandert of Northwestern Law School. Negotiation is an integral part of the practice of Sports Law and today we take a look at some of the basics of negotiating with Daniel Gandert. Mr. Gandert is a clinical instructor at the law school, specializing in negotiation and mediation

SLT- Can you tell us about your negotiation course at Northwestern?

Daniel Gandert - At Northwestern Law, our basic negotiation course teaches students the fundamentals that will help them thrive in any area of negotiation. We teach students the basic framework, as well as lessons on how to succeed in various areas of negotiation.  Since we have found that students learn best by doing, the class is taught through interactive simulations, which allows them to experiment with different styles of negotiation.  I believe that many learn their best lessons the hard way, by making mistakes during a simulation and discovering how the situation could be approached differently.   A typical class consists of students completing a negotiation simulation which is then followed by a lesson based upon concepts related to the negotiation. Learning to negotiate is like learning how to play a sport.  One learns the skill best by practicing instead of by merely reading a book about the subject.  The simulations for the class include everything from representing an athlete in an endorsement contract to negotiating in a town hall meeting to negotiating the purchase of a condominium.

SLT- You also teach a course on  mediation ?

DG- I am one of the trainers involved with the mediation course.  For our mediation course, trainers provide hands-on training on how to conduct a mediation.  Students can become certified to mediate cases for the courts.

SLT- What advice can you give young agents or attorneys in the Sports Law Field to help their negotiation skills?

DG-You should negotiate based upon your interests instead of based upon your position.   Your position is your initial demand.  Your interests are the reasons behind your positions.  They are your true needs, desires, and fears.  I tell students that your position is “what” you want, while your position is “why” you want something.  If you focus on interests instead of positions, you can look at the big picture.  The best solutions are those in which the parties reach an agreement that satisfies both of their interests.  Sometimes, the pie can be expanded when a party trades something that it does not value for something that it does value.  

Another important aspect of negotiating successfully is to look at and understand your BATNA, which is your Best Alternative to a Negotiated Agreement. Your BATNA is your Plan B, or what you would do if no agreement is reached.  The better your BATNA is, the more power you have for any negotiation.  This is where your leverage comes from. The stronger one’s BATNA is, the less one needs to reach a deal.  Furthermore, even if you do not have the best BATNA, it can be helpful if the other party perceives your BATNA to be strong.

SLT- We have always been told that you have to be able to walk away from a deal, and if you don't need it that much, you will put yourself in pretty good shape.

DG- Exactly. 

One thing to note is that the best deal is often the deal that you don't end up making. For example, parties may develop agreement bias and be tempted to reach a deal just because they are negotiating. For example, an attorney who flies halfway around the world to negotiate may feel pressured to come back with an agreement even when reaching an agreement is not in the attorney’s best interests.  Generally, you should avoid reaching an agreement that is worse than your BATNA.  Additionally, one can improve one’s BATNA by shopping around.  Seeking offers from multiple companies can put you in a better position.

SLT- That's what free agency is all about.

DG- However, you need to be careful.  You need to make sure that you do not reach a deal that ticks the other party off.  It is not a one shot world and if the other party is not happy with your agreement, the negotiation might not go as well the next time that you deal with the party.

SLT- What about a player who may be an exclusive rights free agent, or someone that does not have much leverage, such as when you only have one offer. The holdouts of football players Todd Bell and Al Harris of the Chicago Bears in 1985 comes to mind as an example of players whose only leverage was withholding their services.

DG- If the other party won't come to the table, you may want to use your power which comes from your BATNA.  However, keep in mind that you have the most power before you use it, such as before going on strike.

Once the player decides to sit out the whole season, he loses his power since he has already used it.

What matters is the other party’s perspective.  This is difficult to focus on because people have an egocentric bias.  They always view themselves as stronger than they actually are. It is easy to run into this issue when representing football players since they will generally hold the mindset that they are invincible, that they will be doing really well with everything, that they will earn every incentive and that they will not become injured.  The reality is that those things are not likely to happen. It is often better to have a safer contract up front, and it can be hard to persuade an athlete about this.

Tomorrow - part 2 of the SLT interview with Daniel Gandert on negotiation.