The Importance of Setting a Common Understanding Before The Negotiation Begins With Brandon Mitchell

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 A&I we believe that the best things in life are on the other side of difficult conversations. And we are passionate, 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. Brandon, thanks for joining us today.

Thanks for having me.

It is my pleasure, man. So how would you get us started? By telling us a little bit about yourself and what you do.

So, Brandon Mitchell, obviously my name work as a transactional lawyer, mostly M and A and reinsurance in the financial services industry. My company is called Espita. We were just rebranded to the name Aspita and were acquired last year. Prior to that, worked at Nationwide Insurance and the Emerging Acquisitions Legal Group. Went to law school with Uquame, went to Ohio State for law school and undergrad in between those two. Played well, I guess, while at Ohio State. Played football for Ohio State and then played with the Cleveland Browns and the Houston Texans for a small cup of coffee not long, but then decided very quickly that law school was the route for me. I kind of achieved that dream of, I guess making it to the NFL. Didn't stay long, was the end of the roster guy, but then went on to law school.

That's awesome. That is awesome. An impressive career, my friend. So everybody, Brandon was the guy that everybody looked up to in law school. Everybody wanted to be and so he was actually the president of the Black Law Student association while I was there. And then I followed in his mighty footsteps and was president as well. I know everybody told me not to do it because I would lose my mind. And I was like, no, I could do it. And then I lost my mind. So it was fun, we had a good time. And everybody, we're in for a treat today because Brandon has an extensive expertise when it comes to negotiating in the business. World. And what we're going to do is we're going to focus on something that is foundational, but it's almost so foundational that people miss. And if you miss this part of the negotiation, it is almost impossible to have a good negotiation. And so let's set the stage here. When we're talking about really setting a common understanding before the negotiation begins. Can you tell us what you mean by that?

Okay, so for me, you know, when you're going into negotiation or if you're having a disagreement and you're looking to resolve it, making sure that each side of, you know, the disagreement have a common set of facts. For me, it's so important because then you at least know where you stand on the issues. You're able to then evaluate and say, okay, maybe we can get common ground on, you know, one or two points. But I think the initial point of ensuring that the facts are the same, you know, for me is essential to beginning to understand, you know, the counterpoints that may be raised and also the potential positioning of the counterparty that I'm negotiating with.

Yeah, 100%. And I think when everybody listens to this, they'd say, well, of course, duh, that's obvious. But it's really not as obvious as we would think too, because I think going into these conversations, we go into it with an egocentric type of perspective. So we're just looking at it from our own angle. And then when we look at it from our own angle, our positions and their positions seem abundantly clear. And so we don't even often take the time to challenge what is real and what is presumed.

Yeah, that's right. You know, I'll use the, you know, and again, for me, I look at this in a business perspective. It's interesting. You know, a lot of people say, you know, make sure, you know, I do a lot of diversity things at work. And they say, make sure you bring your authentic self to work. As it relates to negotiations. I often have to make sure I'm bringing my kind of authentic self home, right, My negotiation home. So, you know, throughout this I may give a lot of kind of work examples and home examples as well because, you know, it's easier to, I guess for me negotiate with more patients at work than it is at home oftentimes. And that's, you know, I have a four year old and a wife, so between the two of them, sometimes they would say I'm a little less patient at home than I tend to be at work. So, you know, with the common Facts. It could be as simple as, you know, someone saying the sky is gray. And, you know, I would say, no, the sky is blue. Obviously, everyone knows the sky is blue. Like, what's this person's. Why are they saying the sky is gray? And the common set effect there is, you know, what is the sky like today? So they may be saying, the sky is gray today, not the sky is always gray. But if you don't realize, oh, they're only referencing today. And, you know, you could argue back and forth with someone about whether the sky is gray or blue, even though you're kind of talking across each other, and they may be saying, hey, the sky is gray. I know the sky is gray. I can see that the sky is gray. And, you know, he would be saying, hey, how is that possible when the sky's out, you know, obviously blue. Right. You can go into a whole atmospheric pressure and thoughts around kind of the earth in general and ocean reflection of the sun, all of that, to discuss why this. The sky is not gray. But if that person's referencing it specific on a specific day or at a specific time, you would have wasted a lot of time. We could have just got an understanding of, okay, when are you saying the sky is gray? Are you saying the sky is always gray? Are you saying it's gray? Just today. Just making sure that there's an understanding or foundational piece to what you're discussing and why they may have that opinion is really important.

Yeah. And with the example that you gave, I love how simple it is because it makes it very, very clear why this is so important. Right. And it seems like your cure for that is curiosity. Just taking the time to investigate a little bit further.

Yeah, that's right. And I try to use that tactic, especially when, you know, kind of how you reference it seems so obvious to me. Right. So it's like, how could this person possibly believe what these facts are? And why are they. Sometimes it's so opinionated about something that I would think is so mundane, and that's always a trigger for me is, wait a minute, are we talking about the same thing here? Do we even understand where we're starting here? From a business perspective, I'm often dealing with opposing counsel on transactions. And so we're negotiating. A lot of times it's not spoken negotiations. We're doing it via red lines and contracts back and forth. So if, you know, business terms have been agreed to that I'm aware of, that the opposing counsel's unaware of, and so they send a markup Back to me, that has struck some of the business terms that I know are kind of part of the agreement and I know have been negotiated between the two business parties outside of the lawyer's presence. If I kind of reach out to them and say, hey, why are you striking this? I know this is kind of an agreed upon fact. Right. I know this is an agreed upon portion of the transaction. But if we're negotiating from different ends, they may think, oh, this guy's putting this in there, trying to pull a fast one on us, trying to get my client to agree to something that they would never agree to. But it could be just a miscommunication either on my side thinking it's a subtle point from a business perspective, or on their side just not being updated with where things are from the transaction progression standpoint.

Absolutely. Yeah. And with that example, you can see how it creates almost a fork in the road in the conversation because you could either, like you said, approach it with curiosity and ask questions. What's leading you to do this? How did you come to this conclusion? What do you hope to accomplish with that edit, Right. And then it starts a conversation and it gives you an opportunity to learn and to create a connection with the other side. Or you could go the other route, which is typically where your amygdala tends to go. Right. With the fear response, it's like, oh, no, no. Know what you're trying to do? You're trying to attack me. Well, I'm going to attack you back. Right. Or I'm going to run away from it. I'm going to avoid this conversation. I'm going to ghost you, because you're not the kind of person I want to work with. And I'm a little bit scared in this situation. Regardless, both of those situ those alternative responses, neither of them are beneficial, but it all starts with the way that you're perceiving what is happening. It's the same set of facts in terms of what is happening, but a completely different interpretation leads to a completely different approach to how to handle the rest of the negotiation.

To add to your point, I think it's important to understand kind of where the facts are at the beginning because you could also get from that where someone has a different perception of what those initial set of facts were, and that could lead to additional questions. So you may be intending to kind of negotiate or solve one conflict, and there may be a conflict on those facts, and, and it allows you to step into the shoes of potentially the other person and see what they perceived. If this was kind of a common event that you both experienced or witnessed or to understand how they're reading, whether you know, if it's words on the paper, how they're reading this or what their experiences have been, to have them interpret it that way. Whether, you know, in our, in our world it's oftentimes market stand, but the market has changed to, on terms and conditions as it relates to contracts. So starting at the beginning, if you will, for me is okay, do we agree that these are the facts and if we don't, we have to take a step back in what we perceive to be the starting point of our negotiations anyway.

Oh, I love this. Yeah. And this is a great example too because you said, for example, it might have been a common situation, both people may have been in that common situation. And so especially when it's a situation where we both saw what happened. How do you disagree with me on these facts? Right. That happens a shocking amount of times. I'll give an example just at the workplace here at a. And I one time I was having a conversation with a colleague and I said, hey, I want you to do XYZ for ABC reason. How does that sound? She said, yeah, that sounds good. So we're on the same page, you're cool with it. And she said, yeah, that sounds good. And then like a couple weeks later, turned out that was a problem. I said, I checked with you twice during the conversation to make sure you were okay. Right. And so I think also we, we have to sometimes ask what seems to be like the dumb question, how are you perceiving this? What do you remember that happened? Because human memory is infinitely fallible. It is laughably bad. If you want to look up how bad human memory is, go to the studies of Elizabeth Loftus. They are equal parts fascinating, hilarious and terrifying because human memory is really, really bad. And then when you blend that with the reality that usually we will go into these conversations and go back into the archives of our memory with a self serving bias, our bad memory becomes even worse and tipping in our favor. Right. So starting off the conversation with curiosity to just say, hey, this might sound like a serious, a silly question, but give me your perspective on what happened and just start there and then actually listen. And this is the biggest part too, because at that time sometimes you'll hear them recalling the story and you're going to want to go in and counterpoint them immediately like, nope, that's wrong. Nope, nope, nope. This is an opportunity for you to like listen and fully understand where they're coming from so you can actually navigate the conversation at a higher level down the road. 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 now back to the show.

Yeah, I totally agree. And kind of going back to that, I haven't, I haven't read the book you referenced or the research that you referenced, but I think another thing that comes into play often is with the human memory is people remember how they felt versus what the actual facts were. And a lot of times people will make the statement that feelings aren't facts, however, they change perceptions, right? So you may feel as if I didn't, let's say, greet you on the way in. So now you feel like, oh, this person, you know, doesn't like me, or he's, he's having a morning. Right. If you take it to a home perspective, oh, this person's having a morning. It's like, I actually, I said hi, or I thought you were still sleeping, or I thought you had headphones on so you didn't hear me and I intended to greet you. So even though you felt as if I didn't, you know, if you have video evidence, right, you can show that maybe that happened. So I think, I think, you know, people remembering feelings, and that's, that's what makes that question so critical is how did you perceive this? Because, you know, as a part of negotiation. Right. For me, I'm always taking in information and if I, you know, from that perception, they're going to give me some facts. But I oftentimes you get feelings involved in that as well. And so you can either, you know, kind of reiterate back to that person, kind of, this is what I heard you were feeling, or this is what I thought from those facts, or it gives you maybe a stream of consciousness of what that person may be thinking in those negotiations or what sensitive points they may have that will allow you to then get to a common ground emotionally as well. So you may understand, oh, I can't press that button, or I can't go to that topic because that obviously seems like a hot button to them. But it then may give you a clue to where you can be more delicate in your tone or maybe in your language, or where you can give a little bit to make them feel better.

Oh, okay. All right, Brandon, so tell me what you think about this. And I am. This is just coming off the fly here, so I might be wrong, so call me out if I am. Okay, so when we think about a common set of facts or a common understanding, what we could think is we need to agree on everything that happened and our perceptions before moving forward. But what it sounds like is that a common understanding simply means I get an understanding of where you're coming from and how you're feeling about it, you get an understanding of where I'm coming from and how I feel about it. And we might not be in agreement, but at least we understand where we're coming from and we can use that as a starting point to move forward. Even though we don't agree on everything.

Exactly. So while it may not be a, I guess, quote, common set of facts, you at least understand where the starting point is. So maybe that's a better term, is we know, okay, we're starting from. We perceive this differently. And that could tailor the negotiation in a different way, because you could spend a lot of time then saying, oh, well, you may have perceived this one way. This wasn't my intent. I'm sorry that happened. Or we can remedy your perception. And, you know, my. My realistic intent was this. And this actually would have solved whatever problem may have been presented on the other side without, you know, kind of just starting from a place of not knowing that there was a misinterpretation.

Yeah. And so check this out. This. This is actually pretty liberating, too, because a lot of conversations get completely derailed because now we're having a battle over memory. Your memory is terrible, My memory is terrible, But I think mine is a little bit better than yours. So how are we going to figure that one out? There's no video evidence, like you said. But if we realize, hey, we don't need to be completely on the same page, we can still move forward. That's liberating. And another thing, too, is, like, we exist currently in the present, and then we will exist in the future, but the past has happened. I can't do anything about it. So we can agree to disagree on the past, but really, this conversation should be future focused. It should be future focused problem solving. So we're having this conversation to figure out what our relationship is like now and what it looks like in the future. And even if we don't agree on the past, we can use that understanding to move forward and begin to find agreement on what we want the future to look like.

Exactly. And if you really take a step back, understanding that there's a disagreement on the past is actually a fact. Right. So two people are in negotiation. It's like, hey, we disagree on what happened. So now at least we know we disagree and we can kind of progress going forward. So that is a common set of facts. The fact there is, hey, we disagree on whatever the scenario was.

Ooh, this got deep. This got really deep. Because that changes the whole way that we look at this. I mean, for me, because I always think about common set of understanding, and this might be my lawyer bias in trial advocacy. You might stipulate to some facts. And so we say, okay, we agree on facts 1 through 5, but 5 through 10 we don't agree on. And then we approach it like lawyers. I'm going to litigate facts five through 10, and I'm going to try to convince you otherwise through brute force. It's really tough. But now we realize, hey, all of that effort and frustration that we experience when we're trying to convince somebody of the way things are and that their perception is wrong is oftentimes completely unnecessary when we actually take a step back and consider what the ultimate goal is.

Right, Agreed. Right. And if the ultimate goal, one of the things in a law context is oftentimes you're looking for a winner and a loser. Right. So you're trying to persuade judge, jury, arbiter to move in your direction one way or another, and so you're directly opposing each other. I think they're. If you step outside of kind of the legal world, oftentimes there are places where you can have two winners. Right. Two people can agree, or if you're kind of working on a settlement, two people can get two things that they both want at the same time, and so they don't have to be losers. And so understanding, hey, we disagree on these things how whatever those, you know, using your term, stipulated facts that we disagree on, how they play into what the ultimate decision or what our motivations were for coming to the table to negotiate initially can play a big factor into that. Because if we disagree on 5 through 10 of those facts, and 2 and 3 are really important to you oh, excuse me. I guess 5 and 6 are really important to you. And 7 through 10 you don't care about. And I only care about 7 through 10 and don't care about 5 through 6. We can come to an agreement very quickly once we realize, hey, we just disagree on these two things, but they're not that important to me. Obviously you wouldn't say that to the person at the table, but, you know, it's much easier to have a negotiation around the things that you, that you do agree on and that you may need as opposed to, you know, not.

You know, what's cool about this, Brandon? It's like with this, the things that we've talked about, it's not a skill. Right? You don't, people don't need to learn a new skill in order to execute this. They just need to change their mindset around the entire interaction and around perception and their feelings of right and wrong in the moment. And I think that's really liberating. Again, because we don't need any high level technique. You just need to change the way you think and then everything gets a lot better.

Yeah, to me it is right. It doesn't require any talent. It's just, hey, where are we starting at here? Right. What is the basis for which we are here and why we are going down this path we're going down? And that doesn't require any knowledge. All it requires is conversation back and forth.

That's so cool. This is great. This is great. Now, I know we're coming up on time, but before you go, what would you say is one piece of advice that you'd give everyday negotiators in order to get better at negotiation?

Be patient. Patience for me in negotiation is key. And I'm one that's quick to kind of argue my point or quick to assume that what the other person is saying, especially if it's a live negotiation, I'm very quick to, you know, naturally think I understand where someone's going down their line of thinking. So being patient in listening and also being patient in taking time to come to an agreement, ensuring that whatever agreement we're coming to, while there may be emotions involved, there may be outside factors, but if you're patient and diligent in what you're working to accomplish, you can get that done over time. So everything doesn't have to be, you know, kind of right now your point doesn't have to be made right now. It may be, you may take a, you know, roundabout way to get to making your point. But if the other person feels heard and feels like, okay, I'm dealing with someone across who's not just trying to cut me off or trying to bully me into doing something I don't want to do. They're more likely to acquiesce to whatever question you may make.

I love this. Brandon, thank you so much for coming on the show, my friend. Really appreciate it.

Thanks for having me. I enjoy everything you're doing, and congratulations on all your success.

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