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Dealing with Hard Negotiation Tactics

Dealing with Hard Negotiation Tactics

How can a mediator deal with manipulative negotiation tactics by the parties?

 

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It’s very, very important. It’s funny, I’ve talked about this a lot over the last 5 years particularly, and I’ve written about it a couple of times. And whenever I say it to people there is a wakening of awareness to this issue. But it’s not something that everybody agrees with or buys into. But it certainly is my experience and hearing back from others, I’m interested when you speak to others about this, but you’ll find that actually they’ll see the same thing.

 

But there’s a word of warning which comes into the point you were just making about watching the mediator and how the mediator reacts to this. I suspect that quite a few good, good, good negotiators know this very well, and I believe that they will actually create an impasse much earlier in their negotiating stance than an impasse really exists because they will get an earlier benefit of the signal to the other party ‘You’ve done a good negotiation.’

 

So, as a mediator you have to be aware that people may be manipulating you by creating an impasse when there really isn’t an impasse.

 

There’s another significant issue with impasse. A very experienced mediator, who I’ve worked with a couple of times, we instructed him to deal with a particular dispute. And he began the day by saying to both parties in the opening session, ‘Okay, well I’ve read the papers. I know you’ve had this dispute for a long time and we’re here today trying to settle it. We’ve only got the day. I don’t want to waste time. So I’m going to ask both parties to go away to their rooms and I’m going to come and visit you and then I want you to tell me, absolutely tell me, honestly and completely truthfully, what is your bottom line.’ I can see the significance of that sinking in. That’s something which a mediator, in my practice as a mediator and what I see in other mediators, is you don’t want anybody to say what their bottom line is because as soon as they say what their bottom line is they’re drawing a line in the sands, which they’re going to find it very difficult to move away from.

 

So why push them to impasse at the very outset of the mediation? Now, that’s what he did and we had a fair stab at that on my side. In terms of my team, I was advising. It was my case. It wasn’t internal, a guy from CMS advising someone else from CMS, it was actually my case. We made a fair stab at that and say, ‘Well actually this is what our bottom line is’ to the mediator in confidence, not to be shared with the other party. And in fairness to the other party, represented by a good firm, experienced lawyer, did pretty much the same thing. And surprise, surprise we were poles apart, as we learnt quite quickly. The mediator said ‘Well you’re poles apart so I think I should show what your respective positions are.’ And I said ‘Well that’s fine with me’ they said it’s fine with them. So we then said what our positions were. So that, within an hour, brought us to an impossible impasse where nobody had explained or argued or negotiated why it was that they should only be paying X or only recovering Y. It put the dealing with the money at the wrong end of the negotiation, from my perspective.

 

And there’s a few lessons in that. The mediator created and enforced an impasse much earlier than you would ever, ever want it. Before he’d spent any time with the parties, so, my clients, I knew the mediator well. My clients had never met him before, had no relationship with him whatsoever. Even in the little bit of relationship we’d managed to establish in the one or two, three, four hours leading up to getting into dealing with the hard money. They hadn’t had the benefit of that whatsoever. So my client’s looking at me going, ‘Well, why did we appoint this guy? What’s going on here?’ So I’m trying to, you know, I’m in quite a difficult position really. I have to say as a consequence to this, I have not used that mediator again.

About the mediator

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Tim Hardy has been mediating for over ten years, working with parties to resolve disputes across a broad spectrum of commercial sectors. He has been recognised as a key individual by Chambers & Partners Guide to the Legal Profession for his work in dispute resolution as a litigator. Tim is head of the Commercial Litigation team at CMS Cameron McKenna LLP and has over 30-years’ experience of dispute resolution across a range of issues inc... View Mediator