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Mediate.com

Negotiation Tactics

by Phyllis Pollack
April 2013

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

As a mediator, I have conducted over 1,200 mediations and so have seen my share of negotiation tactics. Recently, Keith Lutz posted the more popular ones in a blog post in Negotiation Skills. (http://www.pon.harvard.edu/daily/negotiation-skills-daily/10-hard-bargaining-tactics/print/)

The first one is very popular: the initial demand is an extreme one, if not outrageous, and quite unrealistic. The advice is essentially to ignore it: follow your own strategy and do not let that initial demand set the “anchor” for the future rounds of negotiation.

A second tactic I often see usually occurs towards the end of a mediation: one party will state that her hands are tied; that is all of the monetary authority she has. My advice is to “test the waters” by making another demand to make sure that the representation of only limited authority or limited discretion is, indeed, true.

A third tactic mentioned is an obvious one: do not bid against yourself. If you make a “take it or leave it” demand/offer, wait for the counter demand/offer before deciding whether to reduce/increase the demand/offer or end the negotiation. More times than not, I have witnessed “take it or leave” demands/offers being reduced/increased so that the matter settles for less than a party’s “best and final” demand and more than the “best and final” offer!

In some mediations, I have witnessed the “nibbling” approach: one party keeps making demands on top of demands, often very small ones, in an effort to get the other party to reach a breaking point and either cave in to the demands or storm out of the negotiation. My advice; stay calm. If need be, take a break and get some fresh air. Alternatively, do some deep breathing from your diaphragm which will lower your blood pressure and calm you. It works- ask anyone who meditates (or mediates!).

Every once in a while, I will have a mediation in which the parties get personal- hurling insults and threats. In those instances, I feel like a school teacher facing kindergarteners arguing over who owns the sand in the sandbox. While I do my best to diplomatically (or not so diplomatically) advise that the best way to resolve this is not to insult the other party and to keep it professional, for my admonition to be effective, it is imperative that the other party not take the bait. Do not respond with counter personal insults or threats or warnings but rather ignore them. Playing “Tit for Tat” will get you nowhere.

Often, during mediation, there will be puffing, bluffing and perhaps a little lying (although I hope not!). There is a fine line between puffing and misrepresentation and while it may be ethical (according to the American Bar Association’s Formal Opinion No 06-439 (April 12, 2006) to puff a little, it is certainly not ethical to misrepresent. I find that more times than not, the misrepresentations can come back to haunt a party and the settlement. It might even cause the settlement to be undone due to the misrepresentation. When asked during mediation about this issue, I counsel against hiding or misrepresenting important facts and information during a mediation so that the settlement will remain durable.

Unfortunately, in a lot of my mediations, I get the sense that the parties are winging it when it comes to negotiation strategy and where they ultimately want to end up. The blog post suggests and I heartily agree, to think about the alternatives to settlement BEFORE you walk into the mediation. Know what your best alternative to a negotiated agreement (BATNA) is before you walk in so that during the negotiation, you can continuously compare the current offer/demand with your BATNA. Then, your decision will be an informed one.

Finally, there is the “good cop, bad cop” at the mediation in which a plaintiff has sued several defendants and one of them is the “nice” guy while the other plays it “tough”. As the blog post points out, they are, in actuality, working together and so do not fall for the trap. Treat them both the same rather than reacting to the “kindness” one way and the “toughness” another way.

While not doubt there are many more tactics that are used during a mediation/negotiation, these are the more common ones and, at least for me, keeps the mediation interesting, if not challenging.

…. Just something to think about.

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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