Do You Wanna Dance?

Do you wanna dance and hold my hand?Tell me baby I’m your lover manOh baby, do you wanna dance?

Do you, do you, do you, do you wanna dance?
Do you, do you, do you, do you wanna dance?
Do you, do you, do you, do you wanna dance?

Well do you wanna dance under the moonlight?
Squeeze me baby all through the night
Oh baby, do you wanna dance?

Do you, do you, do you, do you wanna dance?
Do you, do you, do you, do you wanna dance?
Do you, do you, do you, do you wanna dance? ….(Lyrics)

These lyrics were originally composed by Bobby Singer and recorded by him in 1958. The Beach Boys, among other artists, covered the song in 1965, and their version reached No. 12 in the United States. Bette Midler also covered the song in 1972. (Wikipedia)

I think of this song whenever I am at the point in a mediation when it is time to start negotiating and trade offers and demands, that is, the amount of money one party is willing to pay and the other is willing to accept.

This song came to mind again the other day when I had a relatively new attorney ask me whether she should go back and forth a few rounds (i.e., “dance”) or cut to the chase and state the bottom line. I told her she needed to dance.

Why? In 2011, Scot Van Soye wrote an article that appeared in Vol. 1, No. 1 (October 2011) of ADR Times Perspectives on Dispute Resolution. Entitled “The Negotiation Dance: Five Reasons Not to Sit Out” (at pp. 4-5). Mr. Soye discussed the reasons for “dancing.”

The first reason, as identified by Professor Peter Robinson (then co-director of the Strauss Institute for Dispute Resolution at Pepperdine Law School, now Professor Emeritus), is that most agreements are reached at approximately the midpoint between the first two reasonable offers. To reach this midpoint, social pressure is placed on each party to share the burden of concession. “Without a pattern of concessions, sometimes called the ‘negotiation dance’, this mutual pressure is gone.” (Id. at p. 5.)

The second reason is that it is normal to negotiate; “… failing to negotiate leaves your counterpart frustrated, angry that you are being ‘stubborn’ or ‘unfair’ and doubtful that you are really at your bottom line.” (Id. at p. 5.) Consequently, without the “dance”, even the best deal may not be acceptable.

The third reason is that a “take or leave it” approach greatly limits your ability to negotiate as well as your credibility. If your first proposal is your bottom line, if it is not accepted, you must walk away to maintain credibility. If, instead, you offer something else, your credibility is gone.(Id. at p.5.)

The fourth reason is that the “pattern of the dance significantly impacts the ultimate amount agreed upon.” Studies show that the first move in a negotiation strongly influences the other party’s estimate of value. (Id. at p. 5). By anchoring your first demand at a higher (lower), but reasonable amount, the agreement ultimately agreed upon will be higher (or lower). By being the first to make the proposal, you can set the level (or playing field) of expectation.

The fifth reason involves “the value of aspirations or optimistic goals” (Id. at p. 5). “Those with high hopes routinely do better than those with more ‘realistic’ ones. Of course, this assumes that the demands are within the realm of possibility. Ridiculous demands will be ignored.” (Id.)

I have been in many mediations where counsel wanted to speed up the “dance.” Often, my response is that you can’t; if you do try, you will lose that magical something in the process of “dancing,” and the negotiations will fail.

In sum, if you refuse to “dance”, you will definitely be at a disadvantage in any negotiation. You must “dance” to get the most out of the negotiation: it is that plain and simple.

. . . Just something to think about!

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