I’ve conducted a lot of negotiations.
I was a litigator for more than 30 years. I’ve negotiated a lot of business transactions. Since 2016 I’ve worked as a neutral. I’ve mediated many cases – first as a lawyer and then as a mediator.
During this time I’ve learned a lot.
I’ve learned that sometimes your opponent won’t give you any clues about what they are actually willing to take. But I’ve also learned that sometimes your opponent will send you a signal about what they want out of a negotiation. I’ve learned that some adverse parties negotiate on a “sliding scale” basis, where they don’t come to a negotiation with a specific settlement amount in mind but are instead focused primarily on what you are willing to pay. Their negotiations aren’t focused on whether they can get to “their number.” Instead, they gather as much information as possible about your interest in “closing the deal.” While they are always willing to settle at their very high opening demand they often will only agree to settle the case at some midpoint when they are convinced they have acquired as much value from you as possible. For them, the final settlement number can fall anywhere within a general range of numbers, any of which they would agree to as long as they are convinced you wouldn’t be willing to pay more.
This type of negotiating approach can be a bit challenging to work with at mediation. When a plaintiff negotiates based on their perception of the defendant’s willingness to pay, such a plaintiff rarely provides signals as to what they may be actually willing to take. Because they don’t want to leave money on the table, these plaintiffs often begin a negotiation with a very high demand and then only reduce it when they are convinced it’s absolutely essential to do so in order to proceed with negotiations. Because such negotiators don’t come to a negotiation with a specific settlement value in mind it’s often challenging to get from them some idea as to where their true settlement range is. Because they are primarily focused on what the defense is willing to pay such plaintiffs may refuse to acknowledge weaknesses in their case. In working with these negotiators it’s often necessary to conduct a lot of preliminary discussions before getting down to the brass tacks of settlement.
Here’s a case in point. I recently conducted a negotiation with a highly skilled and experienced litigator. Throughout the entire negotiation he never once telegraphed to me any indication as to what he might be ultimately willing to take. Instead, his numbers remained high during virtually all of the negotiations. There were several weak points in his case. I addressed these weak points with him one by one. Every time I did he would smile and then respond with a completely different point that supported his case. He was entirely unwilling to acknowledge my points or any weakness in his case.
He didn’t refuse to talk with me. Instead, every time I raised a weak point in his case he responded with something completely different. It was as though we were having two different conversations. I consistently felt like he was trying to outflank me – to do an end run around the key points and considerations in the case.
Because I could not engage him in a clear, deliberate, rational conversation about the strengths and weaknesses of his case, I ultimately changed my approach. Instead of talking about litigation risks, I began exploring his settlement position by describing different hypothetical settlement scenarios. I did this in an effort to discover what his actual settlement values were. If I were able to discover his settlement values then I’d be in a much better position to determine whether settlement was possible. But even though I worked hard at trying to discover his settlement values, he never gave me any indication as to what he might be willing to take.
It was an exhausting process – but it was worth it. After describing enough settlement possibilities and giving him strong assurances I would not be able to come back to the table with more, I was eventually able to get a series of concessions from this negotiator – but only after he was satisfied that there was truly nothing more to be had. The case settled – and this negotiator was convinced that he hadn’t left money on the table.
Had I insisted this negotiator give me answers that were responsive to my points about the weaknesses in his case then these settlement discussions would have gone nowhere. Instead, I recognized what was happening. I gave him what he wanted (which was a series of clear, persuasive assurances that I wasn’t coming back to the table with more) and in return he gave me what I was looking for (which was a series of concessions that allowed this case to be settled).
The key to this outcome was first, to recognize the type of negotiation approach being used by this negotiator; second, to not get stuck on demanding answers from him that would have required him to acknowledge the weaknesses in his case; and third, having enough flexibility during the negotiations to pivot to a settlement approach that had the potential of being successful.
Robert Jacobs is a mediator and arbitrator with more than 35 years of legal experience. He mediates and arbitrates real estate, business, construction, employment, personal injury, medical malpractice and trust litigation cases. Reach him at www.attorney-mediator.law