Killer Negotiations or Negotiation Killers, part 2

Personal experience shows, and research confirms, there are a handful of negotiation strategies and tactics that elicit predictably similar results. Some tactics create a remarkably short mediation, but produce a less than desirable result. Others surely lengthen the process and, if persistent, also ensure further litigation. The following are common negotiation killers, along with alternative actions which are more likely to result in "killer negotiations" (as in productive). In ascending order, here are #5, # 4, and #3:

#5 Preparation

#4 Fair negotiations (link to prior article)

#3 Falling in love with your own story

It doesn't matter which side you are on, falling in love with "your own story" is a dangerous thing to do. You know what I'm referring to - you've all been mystified by a dogmatic stance taken by the "other side", based on something that seems irrelevant to the case. This is all too easy to recognize in the opposition, but often quite difficult to recognize in one's self.

Falling in love with "your own story" means becoming fixated on an issue that is not specifically relevant to the case, and allowing it to become the justification for your position. Allow me to give you a couple of hypothetical examples:

Ex.1) The defense interprets a claim as bogus because the plaintiff went on a 7 day cruise after the accident, but has no photos of herself doing anything fun or extraordinary. Surely she must have something significant to hide; she's lying about not having photos, so she must be lying about everything else. No offer! Right? Maybe...

Rather than being a dirty rotten liar, isn't it just as possible the plaintiff hasn't allowed a photo of herself to be taken in 15 years - since she gained that 25 pounds, started going gray, or got that first wrinkle? Never-mind the fact that her Ford Escape was turned into an accordion, her collar bone was broken in the crash, and liability is not in dispute. Surely the jury will hate her because of that cruise and lack of photo documentation of her having a great time.

Ex. 2) Plaintiff comes across as a very "nice" person, and he has been a middle school teacher for 10 years. His attorney creates an image of a kind, patient, honest, intellectual man who has foregone his own desires for wealth in favor of a greater good - making a difference in the lives of impressionable teenagers. Any jury will LOVE this man. They will identify with him and feel empathy for him; they will want to help him. They will give him BIG BUCKS... Maybe. OR, they might get aggravated with this middle school teacher because he missed 4 months of work, racked up $30,000 in medical bills, and takes an exorbitant amount of prescription drugs - despite the fact that his doctor can find no "objective" reason for his continued complaints. And there's that issue of disputed liability...

In both these scenarios, a new set of "facts" has been created and decisions are being made based on them. It appears that due consideration for what may be important and relevant information is no longer in play.
Don't get me wrong, we all know juries like "nice" people, and tend to punish "liars". However, falling in love with your own story may cause you to loose all objectivity and result in a mediation outcome that is anything but in your best interest, your client's best interest, and/or your company's best interest. You see, when you fall in love with "your own story", it is you who creates the "facts" and assigns meaning to them. Any other conclusion may just as easily be drawn, should a judge or jury actually hear both sides of the story.

3 recommendations for "killer negotiations" during mediation:

  1. Focus primarily on the relevant facts of the case: All the other "stories" are interesting and even worth discussing; perhaps they will be moving to the "other side". Just remember, they are replete with your personal inflections, so don't hang your hat on them.
  2. Retain your ability to hear and discuss (perhaps even consider) the other side's "story". Productively discussing issues is a two-way street.
  3. As always, rely on your mediator to guide you through should "negotiation killers" get in the way of a meaningful mediation process.
Posted by Karen A. Pelot at 7/15/2011 10:30 AM
Categories: uncategorized
 

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