Some lawyers have what seems to be a pathological aversion to saying “yes.”
They act as if the word is toxic or profane. They will go to great lengths to avoid uttering it. Their default position is no.
Some of this comes from the way we are trained. In law school we take classes in how to become zealous advocates. We are taught to be tough in negotiations. We are rewarded – in moot court and in real life – for winning.
Too often this translates into saying “no” until we get what we want.
One law blogger calls such behavior yes-o-phobia. Ira Meislik, who writes the real estate law blog Ruminations, says this condition is usually caused by one of two things: inexperience or fear.
“This phobia is more prevalent among those new to their field or job, but not exclusively,” he writes. “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 phobic is 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.”
Inexperience Leads to a Fear of “Yes”
Newcomers to the law are sometimes wary of saying “yes” for a number of reasons, says Meislik:
- They don’t fully understand an issue.
- They are scared of doing the wrong thing.
- They don’t want to stake themselves out.
- Saying “no” feels more assertive.
- Saying “no” or “maybe” feels safer.
Senior partners and veteran attorneys are much more inclined to say yes, says Meislik. They understand the value of reaching agreement and moving on.
To further complicate matters, sometimes yes doesn’t really mean yes. It means “yes, and” or “yes, but.”
As an example, let’s say a landlord and tenant are negotiating a commercial lease. The tenant wants exclusive use of three parking spots in front of the store. The landlord says yes. But when a draft of the proposed lease arrives, it includes conditions (the tenant must notify the landlord of the license plate numbers of all three vehicles within 10 days, the parking rights aren’t transferable, etc.) that had not even been discussed, much less agreed to.
From the tenant’s perspective, what appeared to be a “yes” from the landlord in the negotiation process turned out to be something altogether different afterwards.
Getting to Yes
In 1981, Roger Fisher and William L. Ury published their landmark “Getting to Yes: Negotiating Agreement Without Giving In.” The book spent several years on Business Week’s best-seller list. It has been taught in business schools, law seminars and mediation training classes all over the world.
The authors emphasize (a) non-adversarial bargaining and (b) principled negotiations. These are based on five propositions:
- Separate the people from the problem
- Focus on interests, not positions
- Invent options for mutual gain
- Insist on using objective criteria
- Know your BATNA (Best Alternative To Negotiated Agreement)
Meislik adds another key to getting to yes: knowing what you don’t know and being honest enough to admit it. That way, you don’t waste time bluffing or stalling. Instead, you lay the cards on the table and work together to reach at a solution.
Do you – or someone you know – have trouble saying yes? What strategies work or don’t work in dealing with such behavior?
- Getting to Yes, William L. Ury http://www.williamury.com/books/getting-to-yes/
- Ruminations, Ira Meislik http://www.retailrealestatelaw.com/archives/2655
- Ruminations, Ira Meislik http://www.retailrealestatelaw.com/archives/2665#more-2665
Jay Reeves a/k/a The Risk Man is an attorney who has practiced North Carolina and South Carolina. Formerly he was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. Contact him at firstname.lastname@example.org.