Recently in a mediation, a party told me to tell the other side that they had been out of a job for over a year, and that they had to foreclose on their house. As such, they insisted that the defense should pay more money to resolve the case. The plaintiff’s request seemed perfectly ordinary and normal to her. She could only see her side of the problem. However, she could not comprehend why her needs — while important to her — may not be necessarily important to the other side. She made the mistake in the negotiation of negotiating to only her needs and not to the other side’s needs.
The reality is that the other side, while recognizing your needs, may not consider your needs to be important. Indeed, in many cases, the other side often comments that the needs expressed have nothing to do with the value of the case. Both sides in mediation may deliberately disregard the other side’s concerns. The plaintiff may disregard that the litigation is disruptive to the defense’s business and the defense may disregard the collateral damage the litigation may have upon the plaintiff’s personal life.
Successful negotiators realize that although their own needs need to be evaluated, the key to resolving a dispute is to look at the issue from the other side’s perspective. In other words, “negotiate to the other side’s needs, and not just to your own.”
There are several strategies to use when trying to negotiate to the other side’s needs.
First, consider whether the information that you want to communicate will be important to the other side. Next, ask yourself why? Why would the other side need this information? Is it to help with the damages, to change their mind, help them understand the facts? Then, you need to ask yourself how this information will benefit the other side? Will the information change liability, alter damages, or change causation analysis? Or is this information only important to you but insignificant to the other side?
Second, unfortunately many negotiations are a zero sum game—meaning that if one side does better the other side does worse. In those competitive situations where no continuing relationship will exist, the other side might care that you are having extra difficulties. In fact, sometimes they might secretly enjoy the fact that you are suffering. Take for example a hostile divorce. Frequently, one spouse fights with the other solely because he or she knows that the other spouse will get upset over the fight.
In those situations, you have to consider whether the information you seek to convey will do more damage to your cause. Will conveying to a defendant that the plaintiff is broke and needs the money today help the defendant to make a proposal or, will it further entrench the defendant because they believe that they may have the upper hand?
Next, you should consider if this problem is something that you can demonstrate to the other side as being a problem of their own making. For example, if the person who hasn’t worked and has had a foreclosure reframes the issue as: since I have lost everything already, the sum being offered to me needs to make a difference to me otherwise, I will have to continue litigating the case. Maybe that same issue could be reframed as: “I have nothing to lose. Defendant do you also have nothing to lose or will it affect you more if you don’t resolve this case?”
Reframing your needs to meet the other side’s needs is the critical last step. You have to figure out a way to show that this will affect the other side. For example, your job loss for a year may affect the size of damages; and the foreclosure of a business or employer may affect collectability of a settlement sum by the plaintiff.
In other words, people think that their needs and desires will make the other side see their point of view and settle in their favor. The only way your needs and desires will affect the other side, is if you take a moment to put yourself in their position and find a way to make your needs their needs.