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<xTITLE>Difficult People</xTITLE>

Difficult People

by Phyllis Pollack
August 2009

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

      We have all dealt with difficult people. This “difficulty” is precisely why we find ourselves in negotiations with these folks in the first place. If they were agreeable, then there would no need for negotiation; the issue would get resolved quickly and smoothly.

      In this month’s Los Angeles County Bar Association’s Negotiation Tips,  (Vol. 11, No. 11, August 2009), Linda Bulmash provides five (5) tips on how to negotiate with difficult people. They make perfect sense and are easy to incorporate into your next mediation or negotiation session: 

      1. “Set realistic standards of behavior: If you think tempers will flare or that your counterpart has a tendency to walk out or get cold feet just as the deal is about to be inked, consider talking about these issues before hand, e.g. “How should we handle it when …..?

      2. Avoid being dismissive or labeling behavior:  Often when someone is behaving badly, we tend to dismiss their behavior as crazy, foolish, or mean - which often sets us up for failure and prevents us from trying to get to the underlying issues that are prompting such behavior. Take a time out and then start probing the other side’s point of view.

      3. Invite the other side to brainstorm ways to resolve their concerns:  Re-engage them in the process by telling them that you are willing to work with them but you need some help identifying what it is that they really want.  Then suggest they put forth proposals that would work for them. As they do so, you have the opportunity to question why that is important to them.

      4. Put forth multiple proposals of your own: Take time off, prepare 3 proposals that take into account your interests and theirs as well. Present those proposals and ask your counterpart to comment on them. This will give the message that you have been listening to them which goes a long way toward getting negotiations back on track.

      5. Be ready to walk away: If they believe you really will, they often won’t.”

       Tip numbers 2 and  3 ( and 4) are particularly useful.  With respect to tip no. 2, so many times, when someone is acting contrary to our expectations, we tend to dismiss her and her behavior. Instead, we should stop and ask ourselves and the other party, “What  really is going on?”; “Why is she acting the way she is acting?”; “Is there  something going on that is not being shared with us?” As we say in mediation  practice, “what is going on “below the line””? What are the needs and interests that she is not talking about but that are critical to her and to resolving the dispute. More times than not, they are simple and can be easily met,… once we know about them and their role in the negotiation.

      I recall the example given by one of my mediation teachers; it involved a wrongful termination situation. At the mediation, the employer’s lawyers were offering millions of dollars to settle, but the plaintiff kept saying “no”. So, the mediator decided to sit down and just chat with the plaintiff. What came out of that conversation was that the plaintiff was caring for her ailing brother and husband; both had quite serious medical issues. What she wanted was not money, but to stay on the company’s health insurance plan so that both her brother and husband would get the medical care they needed as their health declined in the ensuing months and years. So, rather than a million dollars, she simply wanted to be put back on the payroll as an employee (agreeing never to show up for work) so that she would continue to qualify for the much needed medical care coverage. The employer agreed and the matter settled for much less than the millions of dollars being offered, simply because someone took the time (i.e., the mediator) to find out why  plaintiff was being so “unreasonable”.  

       This story leads to the next tip about brainstorming. Brainstorming is important but to do it effectively, one must simply let the ideas flow and not be analytical as they are flowing. Jot down the ideas without making any judgment about them and ONLY AFTER you have run out of ideas, go back and analyze  them to determine if they are viable or what tweaking might be needed to make them so. No doubt, in the example above, once the employer learned what plaintiff’s true concerns were (i.e. continued health care coverage), the parties had to do some brainstorming to figure out how to keep her on the payroll and obtain that coverage legitimately.  Similarly,   the employer may have had to take some time separately, to come up with its own  proposals  that would fit plaintiff’s needs but, at the same time, not cause it to run afoul of any federal and/or state laws.

       In sum, negotiation is not always easy, but if you take the time to  think and plan ahead and then to dig a little during the mediation to figure out what is “really going on”, more times than not, that “ah-hah” moment of inspiration will come to your aid to help  resolve the issue.

       …. Just something to think about.


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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