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Parties involved in negotiations should consider many issues, but the sex of their opponent is not one of them. Unfortunately, sexism and gender bias permeate many negotiations. There are ways to mitigate the negative effects of implicit and explicit bias in negotiations, though, as explained in Practical Ways to Fight Gender Bias and Sexism in Negotiations presented by the MSBA on Tuesday, April 19, 2022. Martin E. Latz, Esq., Founder of  Latz Negotiation, moderated the presentation, which featured Judith L. Harris, Esq., Debra Green, Esq., and Marisa A. Trasatti, Esq. 

The goal of the presentation was to provide practical and proven strategies and tactics that will empower individuals to effectively respond to sexism and sexist attitudes and behavior in legal negotiations. 

The panelists first discussed how they react to sexist comments in negotiations. Harris offered that her reaction would depend on whether she knew the commentator and whether her client was in the room. She stated that she never acts offended; instead, she figures out what response may help her win the negotiation. She may ignore the comment, use it against the speaker, or lean into it to make them feel foolish. Green and Trasatti noted their responses would vary depending on the circumstances, but their focus would be on the end game. 

Latz then offered five rules for negotiating strategically. First, information is power, so get it. Latz advised that in any negotiation, you should first find sufficient information to determine your goals, then design strategies to support them. He noted that research shows women tend to set less aggressive goals than men and that both men and women take a harder line against women in negotiations. As a result, women frequently are less successful in negotiations. Latz recommends that you base goals on independent, objective standards and develop written strategic negotiation plans. Further, you should evaluate your and your client’s goals when responding to sexist comments. Trasatti agreed, noting there is no substitute for preparation. While this rule is helpful for all negotiators, Latz stated it is especially useful when dealing with sexist comments. 

Second, maximize your leverage. Latz stated both sides should complete a BATNA analysis. In other words, they should figure out the Best Alternative to a Negotiated Agreement, which will not only tell them when to walk or sign, but also prevents them from rejecting an agreement you should reject. Latz stated that women are conditioned to believe that advocating for themselves is unfeminine, unattractive, and unwelcome. To counter this narrative, they should engage in negotiation training. He reiterated that negotiation power is not gender-specific. The panel then discussed real-life situations in which they had to conduct such analyses and what direction they ultimately took. 

The third rule is to employ fair objective criteria. To determine what is fair and reasonable, Latz recommends finding powerful independent standards, like market-value/precedent power, tradition power, expert- and scientific-judgment power, costs and profit power, and professional or industry standards power. Latz again noted that research indicates women have lower expectations in negotiations than men due to sexism and social conditioning. Supporting goals, expectations, and moves with powerful independent standards reduces the influence of gender-related expectations and feelings. 

Fourth, negotiators should design an offer-concession strategy, to address what to do regarding the timing, speed, and size of offers and concessions. Latz noted that the longer you wait to start and between moves, the less eager you appear, and vice versa. Notably, early concessions include relatively larger moves, and later concessions often include relatively smaller moves. Sexist-related offer-concession patterns exist. Namely, women are generally less aggressive in offer-concession moves, including in determining when to even negotiate. The negative impact of this is largely eliminated in a  representative capacity, as in legal negotiations.  Everyone, especially women, must do their homework, know when something is negotiable, and base their moves on non-gender-related patterns and standards, including timing and size patterns. 

Finally, you should control the agenda. Latz explained that if and when and how subject matters get addressed affects your results. Your agenda should include when to meet and for how long, what to discuss and in what order, with whom you should meet, and how and where to meet. According to Latz, research shows women are more concerned about the reputational risk involved in negotiation due to sexism. As such, they should reframe the agenda and how they engage by taking a communal focus; instead of focusing on themselves, they should focus on what they can do for their counterpart. 

You can find the entire presentation in the MSBA’s on-demand CLE catalog.