The other day, I came upon a blog post from the Program on Negotiation (PON) at Harvard Law School that is worth discussing. It is entitled “10 Hard Bargaining Negotiation Tactics” by Keith Lutz (January 10, 2017). I have seen one or more of these tactics often in mediation and despite my best efforts to help a party understand what is happening, I am not always “heard” or “listened” to.

The first tactic is one with which everyone is familiar: “extreme demands followed by small, slow concessions.” (Id.)  When an extreme demand is made, do not react with a similar extreme response. Do not let it set the tone for or “anchor”  the ensuing negotiations.  Rather, stick to your own strategy and ignore the aggression of the other party.

The next tactic, entitled “commitment tactics” occurs when the other party claims that she has limited authority or simply can do nothing more. Rather than accepting this on blind faith, test the waters by making further demands to determine if, indeed, that party is truly at the end of negotiating or can make one more phone call.

Closely tied to the above tactic is the “take-it or leave-it” offer.  In my experience, I have rarely seen a truly non-negotiable offer. There almost always has been a little more “wiggle” room left. So, again, test the waters by making another demand. The worst thing that will happen is that the other party will say, “No, I have no more to offer and no more phone calls can be made!”

Sometimes, when a party makes an offer, she does not wait for a counter, but, immediately reduces the demand. While the general strategy is to never bid against yourself, I have seen instances when the original demand was- in the other party’s view- so unrealistic that the other party refused to respond and demanded that I go back to the first party and obtain a more “realistic” demand. In that instance, I can usually convince the other party to respond in her own way as noted in the first tactic mentioned above. But, sometimes, the other party flat out refuses, requesting that I return to the first party for a more “realistic” demand (or, in effect, ask the first party to bid against herself.) Sometimes, this works, sometimes it does not. (I do a lot of walking in such instances!)

The next tactic mentioned is “trying to make you flinch” (Id.) by making demands that are so unreasonable and designed to reach your breaking point. As the author notes, “don’t fall for it.” (Id.) Keep your calm.

Then there is the “personal insults and feather ruffling.” (Id.) One party may use personal insults or ad hominen attacks in an attempt to “feed on your insecurities and make you vulnerable.” (Id.) Take a break to cool down and regain your composure.

The next tactic is one often used: bluffing, puffing and lying. While it is not ethical for lawyers to mispresent facts or lie during mediation (according to both the American Bar Association’s and California State Bar’s ethics opinions), I have seen quite a lot of puffing and bluffing. Again, be aware that a party may be exaggerating and meet it with politeness and skepticism.

Every once in a while, a party may meet with threats and warnings from the opposing party. (“If you do not do such and such, then such and such will happen.”) The response is to not give in to the threats. Recognize that they are simply threats and respond defensively to them. Do not let a threat or warning weaken your resolve.

The next tactic is to belittle your alternatives. This is closely tied to the above tactic of threats and warnings. Know what your best alternatives are to the agreement you are attempting to negotiate (BATNA) and stick with your resolve.

Finally, there is the “good cop, bad cop” in which you are facing a team of negotiators on the other side and one is acting really nice to you while the other one is being really tough. Recognize the routine and do not let it faze you. If need be, get someone to help you negotiate, by playing the role of “bad cop.” (Id.)

While the above may not be a complete list of every hardball tactic ever used in negotiation, they are the ones most often used. I hope the list helps you in your next negotiation.

… Just something to think about.

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