Win win negotiation: why “never” rules don’t work in real conversations
Never say never: fairness, trust and leadership in high pressure negotiations
TL;DR
In high pressure negotiations, outcomes collapse fastest when fairness and trust are lost. What many people describe as “win win negotiation” is not about being soft or splitting the difference. It is about confidence, legitimacy, and whether a relationship can survive the outcome. Rigid “never” rules often fail under pressure.
The most reliable way to reach an outcome, and alongside that a sustainable relationship that holds, is to listen carefully for values, boundaries, and emotional cues, and respond with agility rather than doctrine. Sometimes, splitting the difference really is the right call. Never say never.
Never Say Never v Never Split the Difference
In the US there is the well-known standpoint of “Never Split The Difference”. In the UK however, negotiation training takes a different stance: “Never say never”.
If you think about it, the subtle subtext to “never split the difference” is: I want to win. It is less negotiation and more outcome driven. For some people, feeling like they have won and the other person has come out worse off is what they deem a good negotiation to be.
So, what do we mean by “never say never”? Quite simply, don’t be rigid in your approach. Be agile. Be open to trying a different approach.
In high-stakes negotiations, the “my way or the highway” approach can often lead to people taking the highway. Especially where both parties have read the same books, done the training, and approach negotiation in the same way. A recipe for conflict.
Hostage negotiators are deployed when conventional tactics haven’t worked, and when conflict is escalating. My advice when training negotiators is always: be agile, be different. Being a cop hasn’t worked, so be different. This isn’t about being soft. It is about giving yourself the best possible chance of achieving a safe resolution.
If we look at the definition of “negotiation” or “to negotiate” there are quite a few. Whilst they might have subtle differences, they do however all have one common thread: they are about reaching mutual agreement.
Fairness as a Foundational Human Value
When we look at building sustainable relationships, whether as a leader in business, a client facing team or in life in general, having someone walk away feeling they “lost” or have been treated unfairly doesn’t bode well for nurturing a strong relationship going forward.
The likelihood in business is that should there be an alternative offering in the future you will be dropped like a hot stone. Clients leave, key people leave, and the wider team reflect on how those people were treated. There will be no loyalty.
Why? Because one of the strongest and most foundational human values is fairness. If people feel they have been treated unfairly, it will stay with them.
There has been lots of research around the subject of fairness and how it drives our behaviour, including the neuroscientific work of Alan Sanfey that showed unfair offers trigger the emotional and conflict processing regions of the brain. Research into fairness also finds that fairness is a cross-cultural value, with us being hard wired to respond to fairness.
Fairness is not a preference. It is our alarm system.
It is important to recognise, particularly when working cross-culturally, that whilst fairness exists in all cultures, the perception of what is fair and how it is applied are culturally learned and therefore may be different from your view of fairness.
We can be in a position when negotiating with a party from a different culture where we feel we are being treated unfairly, yet as far as the other party is concerned, they are acting within their cultural norms of fairness, and of course vice versa.
The work by Joseph Henrich and colleagues in 2004 explores this in detail.
Fairness, Trust and Legitimacy in High-Pressure Leadership
When leading in high pressure environments, cognitive bandwidth narrows, outcome-based thinking degrades, and value violations get louder. The impact of feeling unfairly treated can be amplified.
Fairness becomes a proxy for respect, a test of identity: “How am I being treated?” If the answer that comes back is “unfairly”, we will push back, and any trust built up erodes rapidly.
When the other person no longer trusts you, your ability to influence, persuade and motivate is seriously damaged. Trust is such an important feature of influence and persuasion, which is why we all invest so much time to get there.
If you take the seven areas of influence identified by Dr Robert Cialdini, other than authority where trust is implicit, you need trust to make the other six powerful.
In situations where pressure and emotions are high, a feeling of being treated unfairly is often the fastest way people decide whether to trust, resist or walk away.
Fairness is often the primary lens through which your legitimacy as a leader is judged.
As a leader or a negotiator, a technically sound decision can fail if it is delivered in a way that makes the other party feel it is unfair. Keep in mind as well that research also shows people will actively sabotage the outcome if they feel it is unfair on them. And this is their version of what is fair or unfair, not yours.
People are individuals and everyone will have a different view, a different measure of what is fair or unfair. If it differs from your own, it doesn’t make the other person wrong. It just makes them different.
Win Win Negotiation Fails Without Trust, Fairness and Confidence
We have all heard the phrase “win win negotiation”, but the reality is sometimes there is no win win at all. In those situations, the trust you have built and helping the other person see the fairness in the deal will carry you to the yes.
This is not about giving the person everything they want so they don’t feel badly treated. Quite the opposite. It’s about uncovering those fairness boundaries, about learning how far you can push the envelope without breaking the relationship, understanding how much you can extract whilst allowing the other party to feel the deal is fair, all while staying within the boundaries of ethical negotiation practices.
Listening as the Engine of Influence in High-Pressure Negotiations
So how do we navigate this minefield of discovery? We listen.
Whether you are a Never Split The Difference fan or a Never Say Never fan, the approach is the same. Our ability to communicate effectively, especially in high pressure situations, is driven by our ability to listen.
When people talk, they give away everything you need to know to influence, persuade and motivate. They give away their values, their fears, their motivation, and those ever so important early signs of disengagement that all too often are missed because we are too busy listening for what we want to hear.
Their tone, their energy and even their language choice all give us the route map to “yes”. All we have to do is listen.
Active Listening: Where US and UK Practice Diverge
Whilst the foundation is the same, there are some subtle differences to the application of active listening between the US and the UK. For example, Chris Voss uses the term “mirroring” to describe the listening skill of “reflection” (also known as echoing).
I make the distinction because mirroring is a very different skill to reflection, and it is the one many negotiators confuse. At the start of the kidnap negotiators course, I do a listening skills refresher. When we get to reflection and I ask the question “Also known as what?”, there are always a number who reply “mirroring”.
Mirroring is a different skill altogether. It focuses on body posture, tone, rhythm, energy, language code and pace. It helps with rapport building, influence and building trust.
Whereas reflection helps us keep the conversation going without the need to ask questions. But very much like a question, we have to be mindful that it can steer the conversation in the direction you want to take it rather than where the person speaking wanted to take you.
In the US there is also a pretty rigid approach of reflecting back the last three words of what the person just said, encouraging them to continue and give more detail. The issue with this approach is that there may be other elements within what has just been said that you wish to explore, and the last three words may well take you in a completely different direction.
For me, we need to be far more agile with our application of reflection. The last three words are far too restrictive. Let me give you an example of what I mean.
Reflection, Not Formula: A Crisis Negotiation Example
You are in a crisis negotiation with a person who has not really engaged, mainly unresponsive other than the occasional very short response.
Stress is incredibly high as the person is 39 to 40 metres high on the wrong side of a barrier and on a ledge that is no more than 15cm wide, so narrow in fact that their feet are not able to fully fit on the ledge.
You have uncovered that the person is a taxi driver by profession.
In an attempt to shift the conversation and try a different approach, you make an observation that taxi driving must be really difficult, especially at the weekends with drunken people being abusive in their taxi.
The person looks sideways at you, making eye contact for the first time, causing your heart rate to spike and you feel that all too familiar stomach drop. After a deep sigh, the person says this:
“It’s not bad, it gives me an excuse to get out of the house.”
Now within that sentence there are elements we can reflect back. Using the US model of the last three words, we would simply repeat back “of the house”. This reflection encourages the person to continue and expand on the reason to leave the house. A perfectly legitimate reflection.
Personally, I would include the word “out”, so “out of the house”, if this was my chosen reflection.
However, there are other elements within that sentence that we can reflect that will give different results. Three reflections in the sentence for me are:
“It’s not bad”
“Excuse”
“Out of the house”
Taking them individually.
“It’s not bad.” This reflection steers the conversation down the route of taxi driving (pardon the pun). Why is this a legitimate reflection? Taxi driving is likely to be less of a contentious issue than talking about home (never say never, it could be). Therefore, the person may be more comfortable to talk about taxi driving.
Yes, it is unlikely to resolve the reasons for being there, but what it does do is get the person used to speaking to me, to looking at me and to responding. For a person who has been difficult to engage with, it is perfectly legitimate to spend time relaxing them and getting used to speaking to you. Then we can transition back to the more emotionally driven topics.
“Out of the house.” This reflection steers the conversation down the route of reasons for wanting to leave the house. This reflection absolutely takes us to the potential crux of the issues. Remember though, the reason to leave and get out of the house may be difficult for the person to articulate, and by labelling the enquiry clearly about getting out of the house, there may be some resistance.
“Excuse.” This subtle reflection speaks to the emotions connected to the reasons to get out of the house. It doesn’t label the house, it doesn’t challenge too early, it uncovers the connected emotions.
Emotions drive behaviour, so personally I am always looking to dive deeper into the emotional content of what people say. We will get much deeper into understanding the personal drivers by listening for the emotional content.
The response to the reflection of “Excuse” was this:
“Well, I live with my mum and dad so I can get out of the house when I need to.”
Now we are into it. Now we can use the rest of the suite of active listening skills to start unpacking the word “need”.
The delivery of your reflection is also crucial. The intonation you place at the end can subtly tell the person to either stop talking because you want to speak, or that you are interested and want to know more.
As I’ve said before, communication is anything other than a soft skill.
Think of reflection not as the last three words but as the emotional content, the energy word or as the tactical direction you want to take the conversation. The last three words is too restrictive. Be agile. Consider what reflection will work best.
Final Thought: Why Agility Beats Absolutes in Negotiation
And remember, sometimes splitting the difference is absolutely the right thing to do, so never say never.
