Nine Tips for Successful Dispute Negotiation 5

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Friday, May 16th, 2014
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In building disputes, a good or bad negotiator can win or lose large sums of money. Here’s how to be a good one.

In any negotiation during building disputes, large sums of money can be won or lost depending on the skill of the negotiators involved.

So what makes for good negotiation? Here are a few tips:

1. Use ‘Gun boat’ diplomacy

Notorious American gangster Al Capone once quipped that “a kind word with a gun is more effective than just a kind word.”

Whilst there is no obviously no place for literal use of firearms during construction dispute negotiations in law abiding societies, the principle still applies in a figurative sense, and you will be more effective when you have strength in your corner. This means being fully on top of your brief, understanding the strengths and weaknesses of your case (and the case against you) and having seasoned negotiators on your side.

Get the strongest case you possibly can, and then take full advantage.

2. Pause.

Years ago, I read that the Japanese were more comfortable than Westerners with long silences in negotiation and were conscious of their Western counterpart’s lack of comfort in this area.

If this is correct, negotiators should not feel uncomfortable about asking a question or giving an answer and then waiting – often not an easy task for some who feel they are in control when talking or that they are paid to talk.

Do not repeat questions or answers, or feel any need to break a silence. Ask or answer, then wait.

3. Don’t bid against yourself

Most negotiations involve opening offers, counter offers, offers in reply and so on.

But what if your opening offer is knocked back without a counter offer? A temptation for ‘wetbacks’ is to make a more attractive offer. This is called bidding against oneself and should be avoided at all costs if you have a decent case.

Stick to convention. If your offer is at first not met with a counter offer, wait until a counter offer comes.

4. Stand up for yourself

Occasionally, you will come across an opposing negotiator who is a real ‘head kicker’ (easy to do when it’s not your own money at stake).

This is not an indication of a strong or weak case, though vitriol is often a camouflage for weakness, and you should not fall for this. Your case will be won or lost depending the strength or otherwise of your position at law, not by carry on.

Know your case well and be prepared to stand up to bullies.

5. Don’t underestimate your opponent

This is perhaps an irony but sometimes the worst opponent to get is not one with good lawyers or professional negotiators but rather an incompetent one, who in contrast to skilled lawyers and negotiators may lack understanding about fair and reasonable outcomes for given situations and may feel his or her case is stronger than it actually is.

For this reason, do not make assumptions about your opponent, and do not assume logic will win out.

6. Make sure you have got all day

Every negotiation has its own rhythm, character and drivers. Arriving at an outcome is a process which happens at a certain pace and allows for hardened views to soften. This often takes the better part of a day and can go on into the night.

Be prepared for this. Allow plenty of time and do not assume things will happen quickly.

7. Don’t tire

Where mediation goes well into the night, there is a risk of one of the negotiators becoming worn out.

Don’t let this happen. Take breaks for meals, coffee or a walk, or ring up a colleague for another perspective.

Be ready for a long negotiation and ensure you are in adequate physical condition to stick this out.

8. Beware the ‘scalp hunter’ mediator

Occasionally, you will come across mediators who pride themselves on accumulating ‘settlement scalps’ and who literally terrify disputants into an outcome – often so by extolling the downsides of going to court and conveniently forgetting to mention potential upsides such as precedent value, sending out a signal, the rule of law or (where the other side fail to appreciate that their offers are inadequate) getting the best outcome.

Never be bullied or let anyone convince you that your strong case is really a weak one.

9. Draft settlement terms carefully

The devil is in the detail and it is crucial the terms of settlement are carefully drafted and agreed upon regardless of how keen the parties are to go home, as mistakes at this stage can lead to fallout which is difficult to deal with.

Make sure you agree and the terms of settlement are properly drafted to reflect this.

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5
  1. David Lloyd-Jones

    All sound advice, but I'm puzzled by #5. The example given, of perhaps an obstreperous fool, seems to show danger in over-estimating, not underestimating, an "opponent."

    (This leaves another question: what are you doing negotiating with opponents? Surely you only negotiate with allies about the best way forward. With opponents you simply make relentless war, surely? There's an important business rule along these lines: you only prosper if both your customers and your suppliers do well out of it. You can't get ahead by screwing either bunch.)

    The true point of #5, surely, is to take the measure of your partners accurately. If the other guy is a fool and a mule, what is called for might be a demonstrative sympathy and the offer of a shoulder to cry on.

    -dlj.

  2. Benjamin O.Fatogun

    Good one Prof.
    But.I forsee a constraint like what do you do when parties have agreed on a time scale or you have all agreed that you will spend this time allotted and you have not agreed.

  3. Oscar Torres-Luqui

    I like the point to be strong in your position but very civil in your dealings.

  4. David Kinnon

    Soundly reasoned article. The most dangerous opponent is the one who doesn't know what he's talking about and relies on bluster, not logic. Useful analogy for construction disputes is – avoid a monkey carrying a nail gun.

  5. Chad

    This article focuses on a legal dispute. Often, I find myself trying to resolve a problem prior to the "nuclear option" (court). In these situations, my tendency is to followup quickly and directly – but many other parties prefer to drag things out. Some are even advantaged by dragging a problem out as long as possible. Quick and direct followup may sound good…but it often doesn't go well and we arrive at a legal discussion where the opposing party discovers I am right. I often struggle with offending the other party by requiring response deadlines or other followup by them before they are ready. They come back to my office angry and less cooperative because they are starting to see the clarity of the legal problem they are in. They are backed into a corner, but for us to arrive at an equitable solution, I need them to cooperate.
    Any advise for "timely" but difficult conversations?