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Negotiation Mistake 4: Shortening Up Too Soon

by Nancy Hudgins
February 2011

From the blog of Nancy Hudgins

Nancy  Hudgins
(This is the fourth in a series of Seven Mistakes Really Good Negotiators Make.)

If there’s one thing mediators hate to see, it’s parties shortening up too soon, either leaving the table when the other side was willing to pay more, or walking away with additional money left to offer. In other words, a deal that could have (and probably) should have been made is lost because one side or the other has shortened up too soon.

What motivates negotiators to shorten up? Reactivity is the main cause, but the reasons vary. Reactivity can be due to physical conditions: fatigue, low blood sugar, or lack of physical movement.

If this is the case, get up and move around, take a break, get something to eat.

More often than not, though, reactivity is driven by emotion. The emotions can be anger, frustration, anxiety, panic, a sense of unfairness, defiance, fear, dread, etc. As I mentioned in my last post, strong negative emotions can cause our reptilian, flight-fight-freeze brain to engage. When this happens, we are unable to access our higher, rational brain functions. Thus, to be a really good negotiator, you need to get out of the reptilian brain and into the rational brain and quickly as possible.

Once your client (or you) has returned to rational thought, make an effort to think positively. Studies show that negotiators who enter a negotiation in a positive mood do better throughout. It stands to reason then, that if you feel yourself beginning to be negative, reminding and encouraging yourself to stay positive will have the same effect.

Finally, engage in some reality testing. Re-visit your WATNA (Worst Alternative to a Negotiated Settlement), which in the litigation context, is the likely outcome at trial. If you literally don’t want to go there, then remind yourself that you need to settle the case!


Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class actions. She has settled and mediated thousands of cases. In addition to civil litigation mediation, she also co-mediates divorces with John Duda, a marriage and family therapist.

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