|
|||
|
|||
|
Page 2 Page 3 |
Negotiation: Continued from Page 1 For me, this situation arose when I found myself negotiating a settlement with a brick wall or, if you prefer, a brick head…in this case, they were one and the same. My adversary’s method of “negotiating” consisted of unwavering, one-track responses that had no relation to my arguments, logic, or even strategy. He was simply incapable of evolving any new options, so he kept repeating the same intractable offer over and over again, all the while maintaining that he wanted to settle. And, in retrospect, it is clear that he did. It was just that he had only one strategy, which was to be immovable and unyielding, no matter what was said. Faced with a brick wall, I spent an inordinate amount of time beating my head against it, achieving nothing except sublime frustration. Then it occurred to me (fortunately before I had rendered myself useless by all the wall bashing): this guy was determined to outlast me, and my arguments and strategy had nothing to do with his actions. He was not going to change, so there was no choice: I had to be the one to adjust. I had to fight fire with fire, even though it required resorting to the sort of game-playing that is anathema to everything I teach and practice. If this attorney was going to be a brick wall, then I had to be a harder one. Rather than truly responding to his dogmatic pronouncements (for he was not responding to my arguments), I pre-scripted our side’s actions. Our job was not to break through the brick wall, but to wear it down. Each round, we resolved to come down in our demand just one dollar more than the other side’s “walk point.” It was slow. It was tedious. But we knew that the defense’s job, like ours, was to settle the case. Once we had settled in to a pattern of protracted trench warfare, our adversary’s unyielding approach simply contributed to the deadly pace, since it became clear that we were committed to move in the tiniest increments. If the negotiation was going to bear fruit before our dotage, the defense was going to have to be the one to make a move. And that’s what happened. We not only reached an agreement, we reached an extremely favorable settlement. Incremental, formulaic negotiation strategies are not the best approach in the vast majority of cases; indeed, they are not the stuff of good faith negotiation. But when your adversary is playing a brick wall, rather than a reasoning advocate, standard practice is both useless and irrelevant. One must always be ready to put aside strategies that are ill-suited to the situation at hand, even when it means adopting methods that are crude or cumbersome. Good negotiation tactics may not work against a bad negotiator. You may have to be a better bad negotiator to carry the day. There is another lesson here as well. In negotiation we are prone to be reactive, to respond, step by step, to each move by the other side. This approach does not work in championship chess, and it fails in high level negotiation as well. To be successful, one has to look ahead, and make tactical moves with the end result firmly in mind. When the other side ups its offer by $100,000, you may not want to simply come down in your demand by the same amount. Drop $150,000…confuse them, make them realize that this isn’t going be a rote exercise. Look to your ultimate objective, and negotiate based on that, not purely in reaction to your adversary. |
Mediation: By: Richard G. Halpern Continued from Page 1 1. They can’t lose. Coming to the table only with as much money as it was prepared to pay, the defense has capped the potential mediation results at a level that it finds acceptable. If agreement can be reached at this level, fine. If not… 2. …then the defense has learned more about the plaintiff’s position without having to engage in honest negotiation. The way to counter this strategic use of mediation is three-fold. First,
the plaintiff must refuse mediation as a first step. The proper response to a premature mediation request is, “Let’s
negotiate first, and find out what the gulf is between us.
If your offer is reasonable, and there’s a basis for
discussion, then mediation is an option.” Second, the plaintiff must make sure that the following has occurred before any mediation commences: n A good faith exchange of positions. n An agreement on the boundaries of the settlement being sought. n
A demonstration, in
attitude and demeanor, that the plaintiff is interested only in a just
settlement, not any settlement. Obviously,
plaintiff’s counsel should never
be the one who asks for mediation. This is an act that signals weakness
and doubt. Third, the plaintiff must turn the tables, by making the mediation process work for the plaintiff and against the defense. To accomplish this, it is important to remember the mediator’s role as one where the only goal is to achieve agreement between the two parties. In your early meeting with the mediator, make the mediator your ally, as follows: “Listen, we want to be reasonable. When you’re talking to the other side, keep this in mind. We have to have $X, or there’s no agreement. [In reality, $X is your desired result.] We would certainly like to get $Y, and believe that would be a just and fair result. If you can get them to agree to anything close to $Y, we’ll agree.” [Of course, $Y is a figure that represents your best results for damages.] Now you can’t lose. The lowest possible result is the one you desire anyway. And you have appeared as reasonable and helpful to the mediator, giving him or her a clear avenue to achieve success. Meanwhile, you are set up to turn the tables on the defense in another respect. You resolve not to argue or expose your position, but let the defense do so if it chooses. Even if the mediator fails, you may have obtained a tactical advantage by learning more about your opponent’s position, without giving up anything in return. One more important and often overlooked step you must take: when there is more than one layer of coverage, and the case clearly has a value that could exceed that layer, the excess carrier must be present at the mediation. The carrier’s refusal to attend simply means that its position is locked in, so the only movement will be on your end… down. Don’t permit it. If the defense says that the excess carrier will be there “by phone,” simply say, “Fine, so will I.” Mediation is both a tool of dispute resolution and a medium for strategies that can favor either side. The party that grabs the initiative in framing the mediation to its own advantage is likely to be the winner. If the plaintiff is not prepared to be that party, mediation is no longer a tool, but a trap.
|
|
