How to Better Understand Your Opponent and Win More Josh Barkan, Esq.

Hello my friends, and welcome to another exciting episode of Negotiate Anything. This show is produced by the American Negotiation Institute and with over 5 million downloads and listeners in over 180 countries, listeners just like you have made this the number one negotiation podcast in the world. Hi, my name is Kwame Christian and I am the founder and CEO of the American Negotiation Institute. Here at AI, we believe that the best things in life are on the other side of difficult conversations and we are passionate about providing you with the best content that will help you to make your difficult conversations easier both at work and at home. Lastly, I want to remind you that we offer consulting and conduct trainings both virtually and in person all around the world. Our focus is in three main areas. First, negotiation and conflict resolution. Second, leadership and lastly, diversity, equity and inclusion. Check the link in the description below to learn more about how we could work with you and your team. And now, without further ado, let's jump into the interview.

Foreign My name is Josh Bark and I'm the Vice President of Land with MI Homes here in Central Ohio. I'm in charge of all of our land acquisition and land development within the Central Ohio market and I came to MI about two years ago after spending five years at the Kane Law Group as a transactional attorney negotiating and handling all real estate related matters. Buy, sell, lease, finance, property.

Fantastic. And for the listeners out there, Josh and I know each other because we were basketball competitors in law school and also, also we competed against each other in the negotiation competitions. And so Josh will probably not say this, but he was the best point guard at the Moritz College of Law back in his day.

An amazing claim to fame for myself. I really still trying to have that carry on.

That's fantastic. Well perfect man, I'm excited to have you on because I know having negotiated against you in law school, I know you have the skills and based on your success post law school, in your practice and now with MI Holmes, with your transactional law work, I know you have a lot of value to add to the audience and I'm really excited, especially about the three topics that you chose which were understanding your end game, understanding what the other side needs and wants, and digging deeply into due diligence and its importance when it comes to negotiation. So let's start off with number one, understanding your end game. What do you mean by that?

Yeah, well that sounds great and I'm looking forward to the conversation. I think. I guess one thing for maybe the listeners who are not from Central Ohio or familiar in my homes is the 12th biggest single family home builder in the country and we specialize in building subdivisions. I'm particularly located in Columbus, Ohio, so have experience both on the legal side as well as the business side, negotiating complex real estate deals. But understanding your end game, as Kwame, you and I have talked in the past, I think is maybe the single most important thing for somebody to know. I mean, if you, you go into a negotiation and you don't have an understanding of where you're trying to get to or what you need to get your deal done, no one else is going to know. You know, they understand their side. They can't pretend to necessarily understand your side. So being able to explain that to somebody and help them understand what you need is going to ultimately get you to where you need to be. You don't want to unnecessarily ask for things that don't help. Know where you need to be and understand what it takes to get there.

Fantastic. And so when it comes to understanding you're in endgame and then effectively communicating it to the other side, what do you think makes that so difficult for people?

Sometimes I think that people often times get caught up in seeing a negotiation as a win loss scenario, that it's almost like a game and they, they get tunnel vision and saying, this is where I have to get and if I don't get exactly like this, that, that it's a loss or it's not the best situation. And I personally don't think that could be further from the truth, you know, negotiation. And the thing that I had always liked about being a transactional attorney is that it, it wasn't necessarily meant to be adversarial, that everybody was in it to find a common in game and accomplish their goals. And if somebody else accomplishes their goals at the same time, why is that a bad thing? And so if somebody doesn't understand where they're going, kind of like we said, how do you get there? And then it just screws up a good negotiation that everybody's confused, you know, leaves the table saying, what are we trying to accomplish here? And when. That's the feel in a negotiation, you never get a deal done.

Absolutely. No. It makes a lot of sense. And it's incredible just how many of these negotiations in particular, but difficult conversations in general end up in this realm where it's not entirely clear what either side wants. It's impossible to be productive in a dialogue when you don't know where you want to go and the other side doesn't know where they want to go. So making sure that you're crystal clear on your goals before coming to the negotiation table is critical. And so for you, when you have these negotiations coming up, what do you do beforehand to make sure that you are incredibly clear on what it is you want to accomplish?

So it's different as you wear different hats. When you're the attorney, you have certain goals. I mean, you're, you're representing your client, but you're also counseling your client. And that takes on a different things. As the business person, you know, I know my goals, and I know what I can give on and what I can't give on. And the lawyer in a particular situation may not be able to give on certain things, or a mediator may or may not be able to give on certain things. And so typically, my experience is obviously in real estate and knowing what I need to get a deal done. And that will sometimes be just me. It'll be my entire land team will bring in sales and understand what we need to have a successful deal. And sometimes that's one or two items, sometimes that's nine or ten items. And it frankly just depends on what's going on. But what we do is we try to get there and don't be greedy. Obviously, if we can get a better deal than we ever expected, we certainly want that. But you try not to be greedy. Get to a place that makes sense for you, and then, you know, find out how you can help the other side satisfy their concerns. And it's really a, you know, then everybody leaves the table happy, and hopefully you have a good working relationship to, to actually see the deal through. Because if you have a negotiation that really goes south and it just. Even if you get to a contract, are they willing to help? Or when something inevitably goes wrong in due diligence or at the zoning level, is anybody willing to help the other one to make sure it gets there, or is it just a lot of money out the door? And so we look at all of those things and try to say, how do we get there? And, you know, look at any type of metrics that may be favorable to us, and we really sit down and we iron it out as much as we can before. And so I can go in and be as crystal clear on my, my agenda and what. What I need to make it work.

There are two main points I want to pull from this, because there were a lot of gems, but two of them are standing out to me. And one is when you said you have to understand which hat you're wearing, because in an organization, there are multiple roles that we play. So for you, you have some externally focused negot where you're talking to the other side, but you also have some important internal negotiations. And it's important to have those internal dialogues first because you play a different role. And so you have to think about it as a different negotiation. So in the overall negotiation, externally, we have to have clear goals and understand the end game. But also in those individual negotiations that we have within our company, we have to have that clear end goal as well, because those negotiations are important and frankly, they're the negotiations that are going to happen most often, those internal negotiations. So paying attention to this strategy that you're giving us with those individual conversations within the company and externally, that's going to be critical.

I think you're right. You're constantly wearing different hats. And internally within our organization, we have, you know, a land department, a sales department, a construction department. Everybody has different priorities and has a different role. But at the end of the day, we're all in the business of building great places to live and selling homes. And you take in all the considerations. But you really got to understand your strategic business purpose for doing a deal or pursuing an idea or innovating into another area in the business. And you need to go back and forth with everybody and hear their insights, because everybody's going to look at it a little bit differently because their job's a little bit different. And from there, hopefully you really fine tune what's important to you in your organization and then that shines through as you kind of go into the external negotiation and allows you to structure a deal that works for everybody within your business or company.

Exactly. And it's so critical to get those internal stakeholders aligned, because once you have that alignment, you have a clear, unified message that you can bring to the other side. And I think a lot of times when you are in the role that you're in, or for instance in procurement, where you have internal customers and then you're trying to secure a contract from the outside, it can be tough if there is a situation where there is misalignment internally because it makes it more difficult for you to communicate effectively externally what your needs are and what your goals are. So making sure that everything is aligned internally first clarifies your end game, so then you can perform at a higher level during the conversation.

Yeah, I completely agree. A lot of times the internal, whether a department department in a business or lawyer to client is the hardest negotiation. I mean, often in my role as a lawyer, you know, a good lawyer counsels their client whether it's what the client wants to hear or not. I mean, we're part of plenty of negotiations where the client has the ability to be unreasonable. But you at least know that, you know, it's better to know what you're working with. And if they have the ability to be unreasonable, well, you better circle back and decide how you're going to work with that. You know, a lot of times if someone's unreasonable, you wish you could just say, okay, fine, forget it. Let's walk away from this year being unreasonable. But that oftentimes isn't it. It depends on who has the leverage in any given situation. And always somebody has a little bit of leverage. And I guess that is something really to understand is kind of leverage points where you or the other party may have leverage in any given negotiation, because, you know, if you don't understand that they're going to use it to their advantage and against you, and you're never going to get to where you want to go.

Exactly. And sometimes those leverage points aren't readily apparent. And again, that's why it takes so much diligent preparation beforehand to make sure you have a thorough understanding of the power dynamics within the relationship. So you can then use the leverage appropriately and effectively during the negotiation. And for the listeners out there who haven't yet, you can go to americannegotiationinstitute.comguide and download our one of our free negotiation guides. There you'd get access to all of them, and it'll help you think through the preparation process and go through that power analysis so you can find the source of power before the negotiation happens, so you can use it effectively during the negotiation. But before we move on to number two, I want to give you a chance. Is there anything else that you wanted to talk about with regard to understanding the end game? Josh?

I think that's probably pretty good for right now. And as we go into number two, I probably talk about how it kind of all ties together.

Perfect. Good deal. So, without further ado, let's jump to number two. Does your company invest in professional development training? If you believe that your team would benefit from a negotiation workshop, all you need to do is go to our website, fill out the workshop request form, and then we'll set up a time to chat. These workshops are completely customizable, and we've done them all around the country. Negotiation and conflict resolution skills are beneficial across all professions, but they're especially useful in procurement, purchasing, sales, sourcing, and Contract management. Our calendar is filling up quickly and we even have some workshops scheduled for next year if you think you might want one. I'd suggest reaching out soon so you don't miss out. Check out the link in the description to learn more and we will be right back after this. So understanding what the other side needs and wants, tell us more about that.

So this is almost very similar conversation as understanding your end game. The better you understand what the person you're negotiating wants and needs. And obviously, as we all know, once there's a difference between wants and needs, that will help you get to where you want to go. Because the other side getting to where they need to be is not in conflict with you getting to where you need to be. It may just be. If price is the most important thing to each party. Yeah, certainly you just have a differing of opinions. That's going to be hard to overcome. But oftentimes in the negotiations that I've been involved with and in complex transactions, price is the easy thing to figure out. Everybody can settle on price. It's all the other issues, whether it be timing issues or risk mitigation issues, those are the ones that are the hard thing. And if you can start to understand what is important to the other side, it's going to get you to yes, and get you to a deal a whole lot quicker.

You're absolutely right. And I love how you sequence this, talking about first understanding your end game and then understanding what the needs of the other party are. Because when we reviewed that first point, we recognized it's not always obvious what it is that we want, that it often happens that we, if we don't thoroughly prepare our goal, our end game isn't readily apparent to us. So it's not going to be readily apparent to the other side. And so bringing it to the second part, understanding the other, the needs of the other side, it helps us to recognize and empathize to a certain extent that during these conversations the people on the other side might not be entirely clear on what their end game is either.

Yep, that's exactly right. So, you know, this is an interesting conversation. As I think back coming out of law school, I think a good analogy for all this is, you know, when I came out of law school, I just wanted a job and you know, I'd go talk to lawyers and people at different law firms and you know, I try to get a job and I would talk to them and they would always say, well, what do you want to do? And I would say, I don't know I want a job. And as I look back on that, it's so interesting that it's like, well, if I couldn't tell somebody in the community what I wanted to do, how could they help me? How could they get me a job? You know, I couldn't even tell them what I wanted to do. And I think that is applicable to this, that people, you really need to spend extra time thinking about that and assessing it. And I think it's real. It's a really difficult thing for me personally to do, as well as many other people to really think about what you want or what you want to do or where you need to be. So I say that just as we talk through this. But I think oftentimes the other side doesn't know what they want. And it's an education process. I've been part of negotiations that I've completely walked away from and we've come back to in six months and we ended up getting a deal done because I had to view it as an educational process. In my business I have to rezone a property to my use before I can buy it. My company is not in the business of land speculating. So we have to know that we can build what we build. And that takes time. That could take over a year in a lot of local municipalities. But if people don't understand that and they think somebody's going to come in and write them a check in 30 days, we got a problem. And not only are they going to write them a check in 30 days, they're going to pay them a value of property that is zoned for a more intensive use. And they say, well we've, you know, we've heard that people are paying this per acre. Well, people are only paying that per acre if they have the zoning that allows them to build X, Y and Z. And people say, oh, I don't know if I believe that. I, you know, I want my money in 30 days and I want out. And it doesn't work like that. The only way you can overcome that is by continuing to educate them on the process. And that takes time in start to understand what makes people tick is very different. You know, a lot of time in my business what we see is that a farmer will own his land for, for many, many years and he won't want to sell. And ultimately what happens is that the farmer passes away and the kids have the property and the kids decide they don't want to farm it anymore, so they sell it in the kids interest is very much in you know, liquidate the assets so they can get some money. Alternatively, if you were dealing with the farmer, that's still there, it's tough for him. This has been his land for 30 or 40 years. Is it important that his family name is somehow in the community? Is it important that no one knows about it for any period of time? There's a lot of different considerations, but if you ask good questions and talk through different scenarios with people, you can help them start to form what's really important to them. In some people, at the end of the day, the money is the only thing that matters. And at least you know that. And then you got to figure it out, because if you don't get them the money, nothing else matters. And then there's other people that have very different intentions. But I guess it all goes back to really continuing to educate them and help them understand and have dialogue and see where that can get you.

So in your process of education, what are some different approaches that you use or tactics that you use to, to educate the other side?

Yeah, that's a very good question. A lot of it is nothing but time and need to sit down and meet with them and give them as much information as you have, compare it to other transactions, compare it to your risk tolerance structure, whatever it may be, and talk them through it. How Mihomes, a public company does business is very different than how a private developer has the ability to do business. The way a single family builder looks at ground versus a multifamily person looks at ground is very different. And I think that explaining your concerns, your considerations, it just. Transparency will get you a lot farther than you could possibly think. You don't need to try to trick somebody into something or fool them into getting somewhere. If you're transparent with the considerations that are important to you and where you need to be, and you respect and hear what's important to them. I find that it's really this cliche, but I mean, you build bridges and instead of tear them down, that you get a lot closer than you do on anything else. And it's amazing that that probably gets seven or ten deals done and it's the other two or three that are particularly difficult that you just have to dig in and really work hard on.

Right. I love that. That's, that's really, really helpful. And especially I love the, the part about transparency because you're not saying give away information that would be potentially damaging for you for no strategic purpose. But the thing is, with transparency, it often triggers reciprocity if the Other side is, is not being as forthcoming with information. Oftentimes, if you are transparent and you provide a little bit of information that doesn't hurt you, they learn from that. They say, okay, I can trust Josh. I can share a little bit of information with him because he shared a little bit of information with me. And so it's that transparency that is also a tool, that is an information gathering tool during these conversations as well.

Yeah, that's exactly right. I mean, most people, you can tell when somebody is being forthcoming and honest with you most times. And then most times you can tell when somebody is not honest, is not forthcoming. And it's, quite frankly, not that nice to sit and talk to that, you know, how you react to that. And if you can just start dialogue and everybody feels comfortable together and that they're working to a common goal, that at the end of the day, especially in a real estate transaction, typically a commercial real estate transaction, take it. That at the end of the day, both parties are there to make money. The end user may be to sell groceries and the other person may be a landlord, but they want to make money. And typically cooler heads will prevail when they get there. So the easier that you can make that by being transparent and upfront in giving some people some information, I think that helps. And yeah, you're certainly not giving away anything that's proprietary or telling them some trade secret that would hurt you. But explain to them why. This is the three things you need to get out of a negotiation, and if you don't get it, you can't do the deal.

Right. I agree 100%. Perfect. Well, let's move on to number three. With the time we have left, due diligence. As a lawyer, you know, I love this. So tell us a little bit more about what you mean by due diligence and what role it plays in the negotiation process.

So I think due diligence is a kind of a good one to end on. You know, it circles back to the first two. And I think maybe we even talked about it a little bit early on. But the due diligence is. It's two sides, really. Kind of like what we talked about. The first part is understanding what you need in why in what you believe, and what's the justification for it. I mean, if you're asking for the price to be a million dollars, can you justify it? If you can't, it's probably an unreasonable ask. If you can justify it, then you're probably on strong footing and you should be able to produce that information to the other side. The other part of due diligence is understand who you're negotiating with, start to understand what's important to them. Where are they from, what types of things might they be thinking about going into the negotiation, or have they done deals in the past and how have they done other deals? That's always very important. I've been in negotiations and I know that over here you did X, Y and Z. Why won't you do that here? And one of two things is going to happen. Either you're going to get a reason that makes sense and you're going to say, okay, I guess I agree with that. I understand why you won't do it here, or they're not going to be able to explain it. And they say, well, you're right and I guess I'll do it here. And I think understanding that's important because they'll probably know what you've done elsewhere. And in my day job now, if I go into negotiation, I a lot of times hear, well, you paid this over here. And I better have a really good answer for that. Why can't I pay that? Or why can I agree to do it in that timeline over here, but I couldn't over there, or I could speed it up over there because everybody wants the transaction to go quicker. You better be able to explain that away. And that to me, that is all a part of the due diligence process. And it really goes doing your homework to understand what you want and understand what they want.

I love it. And what we're seeing here is that this due diligence process allows you to ask higher level questions. And those questions that you ask by themselves are persuasive with the example that you gave. You weren't making an affirmative argument by declaring that there was an injustice in the, in what the person was trying to do. But you simply ask the question and there wasn't a good answer and that was it. And so a lot of times you can use the due diligence to almost weaponize your questions. So it's like you, you understand what they've done in the past, you understand who is on the other side, and you understand the entire situation. And now you can use these questions to move the needle persuasively in a way that is not unduly aggressive or offensive.

That's exactly right, Kwame. And that's been a lot of my style. And everybody has a different negotiation style and not one is better than the other. You just need to understand what your Style is, it's always been to me, is that I can ask questions that get you to where you want to go, dig in. And I mean, it's hard for somebody to answer a question and say, well, that's not important, that's not important. And then say, well. And then say, well, why are you fighting me on this point if you don't care about any of these other things? And unless somebody's just going to say no, and maybe if they have leverage, they have the ability to do it in a, you know, a really big landlord that is leasing 1200ft to a, you know, a little barber shop, the landlord probably can just say no for the heck of it because they have all the leverage in that scenario. In other scenarios, you know, somebody may be dying to get a grocery store in there and, you know, the leverage reverses. And I guess it's always important to start to see that and understand that. And if you, you just ask questions, typically when the leverage is equal, you can kind of get there and talk people out of their positions or into where you need them to be because they realize that it's not bad for them to be there. They're still getting what they need.

Right. And on your end, do you ever do due diligence on yourself? And so what I mean by that is just going back to the example that we had before where you were able to do research and see what they've paid for something in the past, you understand that the other person is going to do the same thing for you and your company. So you want to do research on yourself to figure out what vulnerabilities you have in order to protect yourself. Is that something you've done?

Yes. That's an interesting question, because I probably don't sit down and say, I'm doing due diligence on myself right now. But I guess what it really is is understanding your business and understanding your client. One of the things that I liked about the practice of law before I switched was the actual practice. The technical practice of law, whether it was client A, B or C, was a lot of the same. The hard part was learning each client and understanding their business and their business sensitivities. And what may be acceptable to company A is not acceptable to company B or individual A in individual B. And that may just be a pure risk tolerance issue, that somebody may be really conservative and somebody may have a really high threshold for risk and they just don't care about certain things. They say, you know, in 100 years, that'll never happen. Don't even argue with them. And I've always thought that a negotiation, especially a contract negotiation, is you got to see risk on a spectrum that you can't negotiate away all risk. It's not black or white. It's kind of a sliding scale, and you have to view it that way. And so if you understand your business, it's a lot easier to get a deal done. And so I say all that because it's kind of the due diligence of ourselves. Our operation is an ongoing operation every day, you know, understand our business. What, you know, what was important for to us five years ago is not necessarily what's important to us today. And that's something that we have to talk away. You know, how housing is changing. The way people live is changing. Just because all these houses were built like this five years ago doesn't mean they mean they should be built that way today. And everybody needs to be continuously evaluating that so they know what they're negotiating for and what they want moving forward.

I love it, man. Those are great points. Congratulations. You've just joined an elite club by listening to a full episode. You're now officially on the Negotiate Anything team. So welcome aboard. What most team members do is they subscribe to the podcast because that allows them to automatically get the latest episodes of the show. The best things in life lie on the other side of difficult conversations. Keep learning, keep practicing, and keep getting better. Your relationships will improve, your career will soar, and you'll have the confidence you need to get the most out of these crucial conversations. Again, thank you for joining the team. We're excited to have you, and I will see you in the next episode. I'll catch you later.