From John DeGroote’s Settlement Perspectives
The conference table had 40 chairs, and my client’s team filled almost half of them. We had been asked to show up with the folks needed to get a deal done, and the backchannel weekend chatter had all been positive. As the meeting began, our optimism crashed as the other side went on the attack, denying my client’s most important request and questioning why it had ever been included.
People usually need to hear the truth whether it’s convenient or not, but there’s more than one one way to convey a difficult message. How often have you seen someone delight in dropping bad news onto the conference table as the meeting begins? The adrenaline rush might satisfy some, but does this approach do any good?
The lawyer who delivered the bad news to my team that day prided himself in his aggressive persona, and his performance was true to his reputation. Unfortunately his glee was short-lived; my team and I worked night and day to avoid a deal with him, and we succeeded. I wonder if he’ll ever realize what a disservice he did his client.
Negotiation is tough, and bad news is inevitable. Sometimes the answer is “no,” the facts aren’t always convenient, and any deal to be reached has to account for it all. But think before you fire back with uncomfortable facts — as Nancy Hudgins has explained in posts here and here, bullying gets no one closer to closure. As you respond to the other side, you may want to keep the words of Vince Lombardi in mind:
Praise in public; criticize in private.
Lombardi’s advice might not have been directed at negotiators, but his approach works here — I’ll modify his message to say that a small group is usually a better audience for bad news. “Success has many fathers, while failure is an orphan” is a proverb for a reason — people want to be associated with success, and they don’t want to be tied to failure. At the moment you deliver bad news — whether you reject the other side’s offer or reveal evidence that undermines their position — a large group across the table will become more defensive than productive.
Other than your need to have people with dealmaking authority in the room, why do you care who the other side plans to bring to a settlement meeting, a mediation, or a deal negotiation? You don’t have to subscribe to the butterfly effect to realize that every person at the table impacts the negotiation in some way — I have watched individual plaintiffs overreact to bad news because their spouses are present, I have seen lawyers bristle at minor inconvenient facts in front of their clients, and I even noticed one witness unable to deal with bad facts when an attractive law clerk appeared at his deposition. Think about that as you demand the other side bring a second insurance adjuster, two more folks from the home office, and the CEO to the mediation.
Are there occasions where a big group needs to hear bad news? Absolutely, but almost never when a deal needs to get done quickly. Think of first grade: When Miss Haskins wanted to tell you how bad your handwriting was, did she reveal your Big Chief tablet to the entire class, or did she chat with you about your (terrible) penmanship when no one was around?
The next time you have bad news to reveal, get a smaller conference room. You’ll be glad you did.
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