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Mediate.com

Bidding Against Yourself

by Joe Markowitz
October 2017

Mediation's Place by Joe Markowitz

Joe Markowitz

I had a chance to hear William Ury, best-known as co-author of Getting to Yes, speak this weekend at the SCMA fall conference. One of the things he talked about was seeing yourself as your own worst enemy in a negotiation. Or as he put it, listening to yourself as a pre-requisite to being ready to listen to others. Ury gave as an example a meeting he had with Hugo Chavez, when he was president of Venezuela. Ury was brought in to advise the president on dealing with growing conflict within that country, that was threatening to erupt into civil war. But when he presumed to tell the president what he thought was going on in that country, Ury found himself subject to a lengthy diatribe by the president. Had he engaged at that moment, he would have risked getting into an argument. Instead he bit his tongue, stepped back from what he wanted to say, took a moment to focus on his own thoughts and feelings, and simply took in what Chavez was telling him. Finally, when Chavez got tired of talking and asked Ury what to do, Ury made a suggestion that ended up being well-received.

When we focus on our own ideas and positions in response to what someone else has to say, and we fail to catch ourselves doing that, we are precluding ourselves from listening to what the other side has to say. And simply trying to understand what our negotiating partner is saying, without passing judgment or countering with our own points, is usually the best way to make the other side receptive to reaching agreement. Recognizing that you yourself may present as big an obstacle to reaching agreement as anything you are encountering from the other side may also cause you to re-consider some of your demands, and help you become more receptive to reaching agreement also.

How does Ury’s advice square with a common refrain I hear in negotiations, that “I’m not going to bid against myself”? We usually hear this when one side has already made a proposal, and refuses to reconsider that proposal unless they hear something different from the other side’s previous proposal. I frankly don’t find this attitude helpful in negotiations. If you don’t want to change your bid, that’s fine, but to justify that decision on the ground that you are refusing to bid against yourself just communicates stubbornness. Better to explain that you have carefully considered and taken into account all the new information you are receiving. Tell them what you heard them say so that you show that you understood it. And then say you still think that your previous offer was fair. That at least communicates receptivity to new information, and demonstrates a willingness to be flexible in your own position if circumstances justify it.

Biography


Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   



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