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Negotiation Mistake 6: Stopping at Their “No”

From the blog of Nancy Hudgins

(This is the sixth in a series of Seven Mistakes Really Good Negotiators Make.)

If the other side says, “No,” to your latest demand/offer, and you pack up your briefcase and leave the mediation, you’ve actually made two mistakes. First, you’ve acted on your own assumption, without checking whether it’s valid or not, that their “No” really meant “No.” Second, you’ve lost an opportunity to learn something about the other side that could help you either settle the case or give you an insight into how to try it.

So first you need to find out if “No” really means “No,” which means you have to ask diagnostic questions. These could include:

• Why not?

• How could we have approached this differently?

• What would it have taken for us to reach an agreement?

• If you could put together a package deal, what would it look like?

• What can we do to make that happen?

You can also challenge their “No.” Propose a different number. Propose a different package. Propose additional limited discovery to narrow or define the issues.

Malhotra and Bazerman point out in Negotiation Genius that there is nothing wrong with not reaching a deal, so long as the reason is that the two parties’ views of the settlement value were so far apart that there was no way that they could intersect. You won’t know that unless you ask questions about their “No.”

If it turns out that their "No" really does mean "No," use the services of your mediator to see if the issues can be narrowed or segments of the case can be mediated. As Yogi Berra famously said, "It ain’t over ’til it’s over."


Nancy Hudgins

Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class… MORE >

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