From John DeGroote’s Settlement Perspectives
As a wide-eyed sophomore in charge of a campus political campaign in 1984 I pushed bumper stickers and buttons into the hands of as many supporters as possible to sway the undecided — if I could blanket the campus with my candidate’s bumper stickers, undecided voters would follow the lead of their neighbors and support him too, right? But is that really why campaigns print bumper stickers?
Today I’m fortunate to live in a neighborhood where people care, with signs for different political candidates checkering the block. Last week I waded into a political discussion with 2 of my neighbors standing between their opposing yard signs. Not surprisingly, each neighbor fervently supported the candidate whose sign was in his yard — straining credibility on occasion to remain loyal to his candidate of choice. I was immediately reminded that, once someone takes a position publicly and unambiguously, it’s close to impossible to change that position.
Bumper stickers and yard signs lock their owners in to positions. Have you ever, even once, heard of someone with a yard sign or bumper sticker for a particular candidate changing his mind? The same goes in negotiation — clear positions, publicly taken, are hard to retract.
Unfortunately, raised by generations of TV lawyers who win their cases in under an hour, many negotiators focus on the big hit — they want Ms. Jones to admit she didn’t invent anything, and they want Mr. Smith to retract his lawsuit. If Ms. Jones states publicly that she invented the Widgetmaster, she’s not going to settle the case for next to nothing and admit that she didn’t; if Mr. Smith files a lawsuit claiming the light was red, he’d rather lose the case than admit to you — and to his family — that he was wrong.
Good negotiators look for an easier route.
My friend Samantha recently saw this problem in action. One of her clients — let’s call the client “BiggCo” — found that a small startup in another line of business had a competing claim to one of BiggCo’s important intellectual property rights. Before anyone could understand the problem in any detail, one of BiggCo’s senior executives immediately announced to his executive team: “I’ll never pay them a dime.”
Sam had a problem. She immediately learned her client’s position wasn’t very strong, and a challenge to the startup could make matters worse. Most negotiators would have quietly asked the BiggCo exec to change his position, and most negotiators would have been rejected. BiggCo execs don’t easily reverse course; he would rather sue than admit a mistake.
Sam placed a non-threatening phone call to her opponent to explore the startup’s perspective on the problem and what they really needed. Cost conscious and reasonable, the small company’s general counsel sought only three things: (i) confirmation that BiggCo would not challenge his startup client’s IP rights; (ii) a reasonable licensing fee; and (iii) some recognition that the GC had done what was necessary to secure his client’s IP rights (although he didn’t say it this way).
Sam knew that she could draft a license that gave BiggCo and the startup what they needed, but she wouldn’t get it for free. Recognizing that the holiday season was only a few months away, one member of Samantha’s team suggested BiggCo secure the license it needed by paying a local hotel for a small holiday party — with the startup’s employees as the only invitees.
In the end BiggCo’s exec never had to back down from his “never pay them a dime” pronouncement, Samantha’s client got the IP rights it needed, the small company’s GC got the recognition he deserved, and one startup company had a great holiday party that no one noticed cost just a bit more than a dime.
Good luck persuading your neighbor to change his yard sign this weekend.
I welcome comments on this or any post. Please feel free to comment using the “Add Your Perspective” link above, whether you use your actual name or pseudonym. If you don’t feel comfortable commenting directly on this site, I can easily be reached by email at jd[at]johndegroote[dot]com.
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