Rambo may be outdated as a movie figure, but his tactics are not, at least for those who negotiate deals and participate in mediation sessions. Extreme or adversarial forms of competitive bargaining still have currency among some litigators and their clients. Recognizing extreme bargaining tactics and knowing some antidotes to them will increase your chances of success in negotiations and at the mediation table.
I am not talking about everyday competitive bargaining, sometimes called competitive, distributive, or zero sum negotiating, where parties civilly trade offers and counter-offers in an effort to maximize return. This type of negotiation occurs most often in disputes over money and where a fixed pie must be divided. My interest here is with the extreme edge of this style, where parties push the limits of a negotiation or mediation with hardball games in what seems like all out war. Extreme negotiating tactics often come into play when an experienced adversary encounters a novice whom she believes she can intimidate or take advantage of, particularly in the later rounds of a negotiation or mediation.
Roger Dawson, in Secrets of Power Negotiating, lists a number of hardball techniques. Jay Folberg and Dwight Golann expand on these in their text, Lawyer Negotiation. I provide here only a few of my “favorites,” culled from several decades of negotiating and mediating experience:
- Ask for much more than you expect to get: you can sometimes get away with an outrageous offer.
- Always ask for a trade-off: do not make a concession without asking for one in return.
- Nibbling: even after you have agreed on everything, ask for just a bit more.
- Withdrawing an offer: change price concessions or the costs of extras in a deal with multiple elements.
- Escalation: raise demands after both sides reach agreement.
- Use time pressure: 80% of concessions occur in the last 20% of the time available.
- Being prepared to walk away: signal you will terminate the negotiation if you do not get what you want.
- Ultimatums: take it or leave it.
You probably have a few favorites of your own where you felt an adversary was attempting to take unfair advantage of you.
Effective response to these gambits depends upon the circumstances of your negotiation or mediation but only if you first recognize the tactic being employed against you. If you have a plan for your negotiation, have considered your strengths and weaknesses, and know your best alternative to the negotiation, you should not be sucked into a tit for tat game of one-upping your hardball adversary. Stick with your game plan. Enlist the mediator’s help in responding to the tactic. Use the mediator as a buffer between you and your adversary if you need to. Recognizing a hardball tactic for what it is enables you to call out your adversary, perhaps ridicule use of the tactic, and indicate that you will not tolerate its use. Rambo exists only in the movies. You don’t have to deal with him in real life.
To contact Joe Basta, you can email or call, 313-378-8625 to make an appointment.