It seems like everyone tries to get the edge during negotiations and mediations. Whether it’s because of innate competitiveness or trying to get the best agreement for a client, parties and attorneys may say or do any number of things to get an advantage over you and your client, including lying, deception and manipulation.
It’s a really bad idea to lie but it happens in negotiations and mediations all too often. There needs to be a degree of trust and openness and there’s nothing like being caught in a lie or trying to play games to drain away whatever good will there may be in the room.
Less Than Completely Honest Negotiation and Mediation Tactics
Here are four common types of deception you may encounter, based an article by Harvard’s Program on Negotiation.
1. Lies about bottom lines and alternatives.
How low or high the opposing party says they are willing to go need to be taken with a grain of salt. Explore the other side’s claims and reputation as well as alternatives to the current deal.
2. “Too good to be true” offers.
Is that offer much better than you expected, especially from an attorney or party you don’t know well? If so, expect to be nickel and dimed on a wide range of other issues, with less desirable terms being put on the table. Beware of hypothetical, ‘what if’ questions, like what would your client do if we offered XYZ?
3. Escalation of commitment.
If you and your client have made a significant investment of time, energy and resources before agreeing to a deal, the other party may try to take advantage of the situation and your desire to “get it done” by tacking on more and more commitments from your client. You’re not negotiating if you’re not willing to walk away so if the added costs are just too much to bear and you feel like you’re being manipulated, head for the door.
4. Lack of reciprocity.
Ideally each concession in a negotiation should be rewarded with a roughly equal concession from the other side. If that’s not happening and your concessions only result in empty promises and no movement by the other side, don’t negotiate any further. Confront the other party and walk away if there’s no real cooperation.
5. Last-minute nibbling.
A draft agreement is on the table but just before the pens go to the paper the other side makes a modest request. By preying on your desire to wrap up a hard-won negotiation, the “nibbler” may gobble up more from your client. Ignore the request unless there’s a matching concession.
One should always enter into negotiations and mediations expectating the other party will work with you in good faith, but just don’t be surprised and be prepared in case that doesn’t happen.