The Game of Negotiation

Robert A. Steinberg, Esq.

In negotiation, everything is a chip - everything has tradable value. Substantive chips involve the merits of the negotiation. Procedural chips are the tactics your adversary must pay some price to defeat. Your general approach is to gain a little here, gain a little there (“accumulating small advantages”) until your client is satisfied with the negotiating result.

On occasion you may do better than “satisfaction.” But satisfaction should be your goal. Can your client face himself, her family, his employer or her Board or shareholders with that result?

Your case and bargaining position dictate your settlement negotiation strategy. And your negotiation strategy dictates which bargaining tactics you will want to use. You will then be ready to play The Game of Negotiation.

The five main negotiation strategies are Competitive, Accommodating, Compromising, Collaborating and Avoidance. Competitive strategy involves an “I win, you lose” attitude. Accommodation is “I will let you win in exchange for some other benefit I hope to gain now or later.” Compromising is “I don’t care who wins, I just want to get this over with quickly.” Collaboration is “We can both win by expanding the pie before we cut it.” And avoidance is “I don’t really want to play at all.”

The Competitive Strategy
The Competitive Strategy of “I win, you lose” is the one most often used in settlement negotiations. It involves the use of intimidation, distraction, and diversion tactics to gain leverage.

You can choose a Competitive Strategy regardless of your bargaining position. If you have greater leverage, you can use competitive tactics to realize your advantage. But if your case is weaker, competitive tactics can themselves create value.

Most negotiations of every type begin with a Competitive Strategy. The parties need to test each other’s wills before they begin bargaining seriously. The parties then continue their competitive bargaining or shift their approach to one of the four other strategies.

Following are examples of some competitive tactics:

Alternatives to Settlement

Emphasize you have better choices than settlement. The side that cares more about settling is weaker. If you have the better BATNA (Best Alternative to a Negotiated Agreement), you have more “chips.” Make that clear to your adversary.

One example is the threat to “beat your adversary in the marketplace.” This threatens the lawful use of market power to make a legal victory Pyrrhic. Properly used, this tactic is effective.

“Anything But That”

Claim your adversary’s offer is not enough, even when it is. Pick up other concessions before he “wrenches” your agreement from you.

Bluffing

Bluffing is at negotiation’s core because each side has limited information. A good bluff uses your adversary’s uncertainty to create even more doubt. And doubt translates into risk, and risk into money. Look for signs of uncertainty on her face or in her body language. But a bluff is not a lie – never expressly mislead.

A standard “bluff” is “take it or leave it.” Meet this bluff (and most others) by calling it. You won’t know your adversary’s limit unless you push for it.

Bringing in the Media

Threaten to report some action or behavior to the media to induce concessions. Plaintiffs will use this tactic in media-sensitive industries, such as the entertainment industry. Recognize that parties in such industries have fair resistance to this tactic and will combat your disclosure through press releases of their own.

Creating Deadlock

Create deadlock to force your adversary into concessions to move the negotiations along. But distinguish this tactic, as a tactic, from a legitimate impasse. Even reasonable people can disagree.

Diversion/Distraction

If you feel you are losing an important issue, shift the discussions to a different issue before you concede. Even change the subject altogether or use some other technique to distract your adversary from completing the current discussion.

Done Deal

Take some unilateral action and present it to other side as a “done deal.” Your adversary is thus forced to acquiesce or walk out. An example is when a co-party shows up at the negotiation only to discover that the other co-party has already settled.

Good Cop/Bad Cop

Team an aggressive negotiator with a friendly negotiator to win concessions. The aggressive negotiator uses competitive tactics to anger and distract your adversary. The friendly negotiator steps in to smooth things over. The friendly negotiator becomes the mediator between your adversary and the aggressive negotiator, and you can strike a deal on the friendly negotiator’s terms.

Irrational Behavior

Sometimes act irrationally, not only to distract and unnerve, but also to undermine your adversary’s confidence. Lawyers tend toward rational argument. The irrational can throw off even an experienced negotiator.

Limited Authority

Claim to lack authority to settle at some amount and ask your adversary to reduce the offer to your authority limits. To prevent your adversary from using this tactic, determine her authority in advance. If she lacks full authority, do not proceed.

Limited Time

Constrain the time limits of the negotiation. Counter this tactic by clarifying time constraints in advance.

“Poor Me”

Act like you have no background or training in negotiation and ask your adversary’s help. He may sympathize with you and be more reasonable than he intended. This tactic can be especially effective for younger advocates.

Silence

Very few people can endure silence. Silence can impel your adversary to give you more information or concede more than he intended.

If your adversary’s silence discomforts you, say something like, “I see you are thinking about my offer. I’m going to leave the room for a bit. Please let me know when you are ready to respond.” And begin to leave. The silence will end before you reach the door.

Straw Man

Demand agreement on Issue 1, which your adversary cares about most. Create deadlock and then “reluctantly” concede Issue 1 to gain agreement on Issue 2 (the one you care about most) – and maybe Issues 3 and 4 as well.

Turnabout

After you have conceded an issue or otherwise acted defensively, “gain space” by coming out strong on the next issue. But choose that issue wisely. It must be important, and you must win it.

Use of Power

Threaten to use your power and sometimes actually use it. But heed this chess axiom: “The threat is more powerful than its execution.” The threat creates doubt and, hence, concessions; but once implemented, you limit your adversary’s choices, and she will do what she must to respond.

The Accommodation Strategy

An Accommodating party will sublimate its concerns to satisfy the other party’s, at least for the present. You choose an Accommodation Strategy if you have done wrong and want to get the matter over with quickly and less expensively (airplane crashes and oil spills are two examples where quick settlements will save money). And there are less dramatic examples where a desire to limit personal or business disruption will encourage you to end the matter quickly. Or maybe you wish to gain some goodwill or other benefit now or later through a quick resolution.

Some accommodating tactics:

Face-Saving

Prioritize the other side’s dignity. Use every opportunity to give “face” and respect to the other side. Allow the other side to make tactful retreats to avoid embarrassment.

Identification

Align your interests with your adversary’s, see the facts from her perspective, and agree with her arguments. But don’t concede unnecessary issues.

Take the Lead Oar

Move the negotiation forward regardless of who created the difficulty. Suggest solutions, offer to prepare the documents, and be flexible about timing.

Take Reasonable Actions

Always be the party of reason, whether setting realistic deadlines or other conditions of the negotiation. Rarely if ever use a competitive tactic to move the other side.

The Compromising Strategy
Compromisers look for an expedient, partially satisfactory middle ground. Their primary interest is haste and “rough justice.” Thus, compromisers are willing to trade concessions, sometimes despite the merits, simply to make a deal. One example is a dispute involving an ongoing business relationship. You may choose to give a little to preserve the relationship.

Following are the compromiser’s tactics.

Bit-by-Bit

Gain your concessions “bit-by-bit” rather than all at once. As the direction of the incremental movement becomes clear, suggest meeting at the mid-point.

Conditional Proposals

Make a proposal conditioned upon your adversary’s acceptance of issues you need favorably resolved.

“Log-Rolling”

Concede on an unimportant issue to you (but important to your adversary) in exchange for your adversary’s concession on an issue that does matter to you.

 “Splitting the Baby”

At some point offer to split the difference with the other side, whether through an exchange of remaining issues or halving the dollar amount still in issue.

Tit-for-Tat

Never make a concession without obtaining one in return. This rule underlies all bargaining (“I won’t negotiate against myself!”). But you must adhere to it when compromising or you will “compromise” away all your value simply for expediency’s sake. 

The Collaborative Strategy

The Collaborative Strategy (“Win-Win”) seeks to create value for both sides. Its focus is on each side’s underlying interests and not their positions. You give the other side something it wants in exchange for something you want. You both gain in the process.

Business negotiators use the Collaborative Strategy. Business negotiations involve many different components of value and risk allocation, all of which can be traded against one another for an ultimately satisfactory outcome. The lesser opportunities for value and risk allocation in litigation settlement talks explain why most litigants begin with a Competitive Strategy.

Following are some collaborative tactics.

Flexibility

Be flexible, the hallmark of a skilled collaborator. Know when to mount a tactical retreat and when to press for an important point. Be willing to reexamine decided issues, but don’t feel obligated to make further concessions unless you also gain something.

Focus on Process

Process often translates into improved substance. Rearrange the mechanical steps of the negotiation to overcome impasse and deadlock and enhance problem-solving prospects. Typical examples: take a break in the negotiation; change the physical setting of the negotiation; or return the negotiation to the fact-finding stage.

Identify with Others in Similar Circumstances

This tactic might be termed the “transitive rule” of negotiation: argue that the other side has already treated similarly-situated X in a particular way, and they should treat you the same way. Defendants in multi-defendant suits often use this tactic when the plaintiff has settled favorably with one of them.

The Avoidance Strategy

Avoiders try to ignore the entire dispute, or some specific issues, for at least some period of time. The avoider uses tactics to sidestep or postpone an issue or withdraw altogether from what the avoider perceives as a threatening situation.

Negotiate Money Issues First

If you prioritize money, insist that money be negotiated first. By fixing the money component of the settlement, you avoid discounts for the cash-worth of any non-money concessions.

Negotiate Non-Money Issues First

But if you wish to avoid paying money, address the non-money issues first. You can then value your non-monetary concessions and use those values to reduce the amount of money you will pay your adversary.

Refuse to Combine Negotiation of Related Disputes

If you are litigating multiple related actions, refuse to negotiate the actions together if you determine that you are stronger in one case than another. You can thus avoid offsetting your strong case with the other cases’ weaknesses.

Walk Out of the Negotiation

If you become engaged in negotiations you are not ready for, walk out. You may state dissatisfaction with your adversary’s proposals, but your goal is to defer discussions to a later time.

Withdraw an Issue

If you are not yet ready to address an issue, perhaps because it is too painful or simply not ripe for discussion, remove that issue from the negotiation, for at least some period of time.

Switching Strategies

You may decide to switch strategies if you feel you are making insufficient progress. As negotiations move forward and you want to encourage continued progress, you may abandon a Competitive Strategy for one of the cooperative strategies (Accommodation, Compromising, or Collaborative). Or you may instead move to a more Competitive Strategy in response to the other side’s competitive behavior.

Conclusion

The Game of Negotiation requires specific strategies and the right tactics to implement that strategy. Your case and bargaining position will determine which negotiation strategy will work best for you: Competitive, when you must have what you want; Accommodation, when you have done wrong and want to settle quickly; Compromising, when expedience matters most; Collaborative, when you want to create a bigger pie; and Avoidance, when you are not yet ready to bargain.