ABA Section of Business Law

Reviewed by Donald Lee Rome

Recent years have brought us a plethora of books on negotiating, designed to produce immediate victories, with little attention to long-term business goals. Nice guys and wimps lose; tough guys and machos win. This is in striking contrast to interest-based negotiations, the centerpiece in successful mediation; both sides achieve their goals, if they look at what their real interests are, rather than hard negotiating "positions." The buzz phrase is "win-win."

Literature dealing with how to negotiate successful "win-win" results without hostility and confrontation has been directed toward mediation techniques, not to business negotiations when transactions are structured. Thus, the most knowledgeable and informed practitioners of successful "win-win" negotiation are those involved in the dispute resolution process — trial lawyers and mediators, along with those corporate business people whose companies have embraced mediation.

Yet it is the business lawyer and client who, without the help of a third-party neutral mediator, are on the line to negotiate and make deals without giving away the store in negotiations, and without souring important actual or potential long-term business relationships. Problem solving is the critical skill required.

The Power of Nice: How to Negotiate So Everyone Wins — Especially You!, by Ronald M. Shapiro and Mark A. Jankowski, with James Dale, is a timely, readable, entertaining and practical guide to successful relationship-oriented negotiations, business and otherwise. The documented experience and well-articulated wisdom of the authors are that the best results are achievable without confrontation, humiliation, hostility and other negative elements often present in negotiations. The authors, lawyers with practical business-law experience, provide valuable guidance and thought-provoking ideas at a time when business clients have turned away from scorched-earth negotiating.

A useful tool for both lawyers and nonlawyers involved in the transactional negotiation process, The Power of Nice is a remarkable negotiation road map. It comes with checklists and other learning aids for reaching interest-based goals and establishing and continuing important relationships. The combination of simple but powerful suggested "rules" to be followed, anecdotal examples of nonconfrontational techniques, and self-exploring exercises to test attitudes is credible, and should be effective for any reader wanting to learn and improve negotiating skills to achieve successful results. Their approach does not preclude, as the authors put it, "WIN-win." You can have more, but the other side has what they need, and considers the negotiation successful.

This book demonstrates the important need for lawyers in training as well as those in practice, to understand their role as problem solvers. Business lawyers know about client pressure to make the deal happen without harmful controversy and to establish and preserve important business relationships in the process. Most of them have developed on an ad hoc basis through experience various methods to achieve these goals. Rarely, however do business lawyers synthesize their problem-solving experience and their guiding negotiating techniques and principles into a format that can be effective to teach and train others. Shapiro and Jankowski have done this.

Problem solving, and therefore effective negotiations in business transactions, requires the development of both generalized and specific techniques that can be used on a repetitive basis, with situational flexibility, to realize business goals without hostility and confrontation. Can this be taught other than on real time by example from skillful practitioners in the art? The Power of Nice demonstrates that it can, real-life examples can be used and general principles developed.

Mediators and other dispute resolution professionals, and many experienced business lawyers, will find through this book that their experience can be synthesized into a vehicle for teaching and training at the law school level, in law firms, corporate law departments and other institutions where the pressures of current economic and governmental activities require effective dispute avoidance, problem solving, and continuity of amicable relationships, without sacrificing important goals and interests — all of this through effective negotiations that can be "nice" rather than hostile.

While some may want to dismiss the practical value of this book as a promotional piece for the authors, which it clearly should be and is, most business clients would be happier if all lawyers would practice what Shapiro and Jankowski preach.

Rome is chair of the Section’s Dispute Resolution Committee.

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