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Be a Negotiation Hero!

I’m dashing this post off between mediations. Here are statements I will not have to hear you make if you are a lean, mean negotiation machine.

“If she’d asked for a reduction in her commercial lease rate in light of the downturn in the economy, we would have negotiated a decrease in her yearly rent.”

“If they’d come to me to discuss the matter before they hired lawyers, we could have resolved this ourselves. Now that I’ve spent $___________ in attorneys’ fees, I don’t see anyway of coming to a resolution short of trial.”

“I don’t respond well to ultimatums. Tell them we’ll see them in Court.”

(requiring me to reframe the “ultimatum” as an effort to suss out their bottom line and to say, for the ten thousandth time, “if you’re moving in the direction of one another, there’s still a possibility that your true bottom lines overlap so let’s keep negotiating”)

“I’ll be frank with you, my true bottom line is . . . . . “

No no! Please do not tell the mediator your “true” bottom line. If you’re telling her the truth (something she does not assume) then she will drive the negotiation toward your bottom line. Any mediator will. They can’t help it. Any number that enters the negotiation environment in a circumstance of uncertainty about value will serve as an anchor, strongly influencing the outcome in every exchange of offers and counter-offers.

On the other hand, if you think you can fool her with a false bottom line, you are a brown belt and may proceed.

“They will never agree to my terms.”

If the mediator says she doesn’t agree with you, listen up! She’s holding confidential information from the other side. Just as importantly, only you know what your actual terms are, so no one can predict the future of any negotiation because no one knows what their bargaining partners’ true bottom lines are. Don’t get ahead of yourself. Be patient. As long as you’re moving in the direction of one another, a deal is more likely than not.

“They’re negotiating in bad faith.”

There’s no such thing as “bad faith negotiation.”

Are they lying to you about a material term of the potential agreement or facts that drive your decision? If so, put it in the deal memo as a condition precedent to your obligation.

“He’s scum (a liar, evil, contemptible, etc.).”

That may be true. It should not, however, keep you from entering into a deal that reduces your economic risk to an acceptable level at a cost that makes business sense to you.

“O.K., but they have to pay your full fee.”

I’ve just helped the parties settle a nine-figure case with five plaintiffs and twenty defendants and you want them to pay my $5,000 fee. You’re quibbling over $2,500 after paying $34 million to settle this case? You’re trying to save face, which is fine. But is it worth making your opponent lose face and potentially blowing up the deal you’ve just spent fifteen hours and tens of thousands of dollars negotiating?


Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

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