By Steven G. Mehta

What Would You Do If…..

A party receives what it considers a small counter-offer and refuses to make a another offer/demand unless the other side substantially changes its position.

Tracy Allen: Which response will provoke the customary “I’m not bargaining against myself.” In order to make an intelligent counter, the non-responding, stubborn party usually needs information. Aside from being insulted by the offer and thus “pissed off”, it’s too easy to dig in and not engage. Why not try a different approach? Why not go fishing for information to see if you can get any clues on where the opponent is going or wants to end up? How do you suggest we go fishing? What bait should we use? What do you need to know? How best to get that information? It’s ok to send a signal that you are dismayed by the offer and you can show that dismay in your response as well as in the message the mediator takes with it. This is a situation where parties have to allow the process, i.e. the dance” to get underway. They have to set a rhythm and begin the dance. Unless the stubborn party came with no intention of exploring settlement, one can usually get

something moving.  We also know that there are two kinds of responses to a perceived lousy offer- an in kind response and a defective response. The refusal to respond is a defective one. An in kind response would be to make another counter and if that is again met with what is perceived to be a defective counter, then the stubborn party can become “defective” too.  One or two attempts to extend the olive branch usually doesn’t bite you in the a– if the parties came to make a deal you can always pull back in later rounds. Use the mediator as well to send the proper negotiation messages so the dance can proceed.

Gig Kyriacou:

I tell people all the time to reward good behavior and punish bad.  In this context, I validate their concerns and tell them to respond in kind… but with some level of movement.  No one likes to bid against themselves so there must be some reciprocal response.  Another alternative that I find works is when a party states that they are going to choose to ignore the offensive move “this one time”, but if there is a similar move the next time then there will be no response.  This is very effective in getting the attention of the opposition and you rarely see such behavior continue unless the party is looking to end the negotiations.

Mike Young: There is no one answer to this.  It may be that this is exactly the right move to reset the bidding and get the parties into a constructive negotiating zone.  On the other hand, maybe this is just a power play that is destined to send the process swirling down the toilet.  Or maybe one party is just testing the resolve of the other to see what will happen.  As this tactic generally occurs early in the process, I see my job at this stage to keep the music playing and the parties dancing, even if there is a little toe-stomping going on.  Let’s make sure the party considering the Non-Move response has thought it all the way through, has considered the options and the possible consequences, understands the risks and potential payoffs, and makes the Non-Move knowingly and intentionally.  And if that party, after due consideration, wants to make the move — or non-move — I would make sure the Non-Move is presented in a way that expresses the message…but keeps the parties dancing (I know, it’s a sloooow dance at this point).  A Non-Move obviously has the serious potential of backfiring, but if it is an appropriate response under the circumstances, the message should be able to be presented without derailing the train.  (I love the mixed metaphors.)