Negotiation News: Volume 6, Issue 2
We have all been there: A Plaintiff comes into a mediation with a demand he or she hopes will ultimately be negotiated to a fair settlement, and the defense offers $500, with an indication that they may be able to get $1,000. Or, the defense has conducted a reasonable assessment of a case and the Plaintiff won’t move off an exorbitant demand. For the next few hours, negotiations proceed at a snail’s pace.
- Common Hardball Tactics
What to do?
Although every mediation, case and participant is unique, the other side may be employing “hardball” tactics designed to make an opponent “crack” and get the case settled out of necessity, not because settlement is in the best interest of the client.
There are a number of tactics “hardball” opponents will use to attempt to throw their opponents off their game. Among these tactics are:
1. Extreme demands or offers followed by small concessions to attempt to anchor the mediation to a high demand or low offer.
2.Attribution of limited authority (i.e., “we have no room to move” or “my client won’t let me do that”)
3.An early “non-negotiable”
4.Asking one’s opponent to raise or lower an offer or demand without a counter
5.Lying, threatening and warning
6. Good cop, bad cop.
(From Harvard Project on Negotiation, 10 Hard bargaining Negotiation Skills, 4/27/17)
The best weapons to counter these tactics and keep negotiations moving are (1) knowledge, (2) patience and (3) focus.
Realize what is happening. Is your opponent trying to send a message, impress a client or throw you off your game? Probably a combination of all three. Ascertaining and processing as much information as you can about the dynamics in the other room is always advantageous. Think about who might be “calling the shots”. Discuss with the mediator not only the strengths and weaknesses of the case, but where the disconnect in negotiations appears to be coming from. Knowledge of dynamics within a mediation can be as important as the offers and demands being exchange. Knowledge is power. Understanding as much as you can about the mediation session, the players, decision makers, obstacles will keep you on track toward a successful negotiation.
If negotiations are to be successful, positions invariably have to morph into interests. In countless mediations, I hear at point A, “this is a waste of time – they asked for this and they know we aren’t going to take any less than $500,000” to point B, “look – we acknowledge our client is not a good witness, and it is really important for him and his family that we get this resolved without trial”. Be patient with the road that must be traveled to get from point A to point B, and do not lose sight of your goals.
Mediation often requires continuous evaluation and re-evaluation of positions, offers demands, acceptable end results, etc. However, it is crucial not to lose focus of what is ultimately sought to be accomplished. By staying focused, you will minimize the effect of the tactics (or distractions) going on in the other room.
The mediator is the only person in a position to assess both rooms (if this is a caucus mediation). Listen to what is being communicated, both substantively (offers and demands) and procedurally (to try to ascertain if there is a pattern or method of how the other side is negotiating). Being aware of hardball tactics, and what you can do to minimize their effect, will result in more satisfactory mediations for both yourselves and your clients.
I hope you found this newsletter useful and helpful in dealing with some of the “hardball” tactics you will encounter in mediation. I look forward to working with you again and helping you to resolve your cases and disputes. Please feel free to call me at 818-616-8500 or 818-616-8500, or email me should you have any questions or comments.
All the best, and I look forward to working with you soon!
Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. He can be reached via telephone at 818-616-8500, at www.judgemediation.com or via email at [email protected].