New Information: One Way To Help Your Client Save Face

From John DeGroote’s Settlement Perspectives

The mediation had dragged for an entire day, and we hadn’t made much progress. The other side said they couldn’t give any more, and we wouldn’t, either. The mediator’s proposal that followed was the best deal we’d ever get and, frankly, it was the right number. But my client’s COO reacted instantly, calling in a “no” on his way home. Our answer was due to the mediator in in 24 hours.

As I prepared to discuss the mediator’s proposal with our executive team and the COO the next day I realized my client might have painted himself into a corner — after a good night’s sleep I was confident he would want to change his mind, but sometimes it’s not that easy.

Only Two Ways to Get the Case Settled

I debated how to settle the case that day, and there were only two ways to get it done: with my COO or without him. I could gather the facts and work to persuade the executive team over his objection, or I could get the COO to revisit his decision before the call began. The fact that I recommended the deal would carry a lot of weight with the team, but my client’s COO was his boss’s right hand for a reason. And even if I “won” this one, we had an ongoing relationship to preserve. The choice was easy.

The COO wasn’t irrational and he wasn’t a stranger to big disputes, but he had said “no” rather emphatically. While I suspected he’d want to change his mind, clear, public statements are hard to retract. I have written about the decisionmaker’s need to save face before, and the concept as articulated by Fisher and Ury certainly applied here:

Often in a negotiation people will continue to hold out not because the proposal on the table is inherently unacceptable, but simply because they want to avoid the feeling or the appearance of backing down to the other side.

My decisionmaker would want to avoid any appearance of backing down to his lawyers, to the mediator, and to his executive team. I needed to give my COO a way to change his mind.

Saving Face With New Information

There had to be a reason we disagreed the day before. As I looked through my notes to retrace our steps, I realized my COO had based his decision in part on a “fact” we learned at mediation. As he had flown home the night our mediation ended, the rest of my team had dissected the day and realized that this important “fact” couldn’t be true — an idea we had explored late in the day to keep the parties’ relationship alive just wouldn’t work.

We had found the key to get the deal done.

I called the COO in advance of the broader executive team conference call, and it was clear he was preparing for a fight. Immediately he began to justify rejecting the mediator’s proposal. At that point — before he dug in too deep — I gave him the new information the rest of the team had realized the night before. In a few short minutes we had agreed to jointly support the mediator’s proposal. A settlement of one of the company’s biggest cases ever came that afternoon.

Use a little new information the next time someone on your team needs to save face. You’ll be glad you did.

                       

John DeGroote

John serves as a mediator and arbitrator in complex business, technology, and intellectual property matters involving parties and interests around the country and beyond — often before litigation is filed. Prior to his service as a mediator and arbitrator, John served as the lead settlement negotiator in hundreds of cases,… MORE >