“Good Cop/Bad Cop“ When Negotiating

You’ve seen it countless times in TV shows and movies.

Two police officers are interrogating a suspect or someone withholding important information. One yells and threatens while demanding information or a confession.

The other officer kindly speaks to the person and offers a drink or something to eat.

Whether or not this works for law enforcement, the good cop/bad cop approach may be effective when trying to negotiate the settlement of a lawsuit if done the right way in the right situation.You and your client may be frustrated by the lack of progress or cooperation and want to play tough. You want to make a demand or refuse a concession, but at the same time, you don’t want that refusal to shut down negotiations. In those cases, having a bad cop, even someone who’s not actually there, may help.

Perhaps you could have a fellow attorney in the room to play the bad cop. He or she can be firm and not nearly as nice as you are while not being confrontational. You could even make up an outside bad cop, like stating a proposal won’t fly with your client’s legal department. A future judge or jury could be the bad cop, warning that, given the facts, the other party’s position isn’t going to be accepted, so it’s in their interest to work something out before the case gets to trial.

The reason encountering both a “good” and “bad” person could be more effective at negotiations instead of just a “good” person or a “bad” person is the psychological contrast effect. According to Bob Sutton, Professor of Management Science and Engineering and a Professor of Organizational Behavior at Stanford, this means that the impact of the carrots offered by the good cop seems that much sweeter and the sticks used by the bad cop harsher. Sutton says research shows that if this method is used to persuade people the most effective way to do it is when the bad cop goes first, and the good cop follows.

If it’s the other party using a team of good and bad cops here are some ways to handle it.

  • Call it for what it is. Ask if they’re playing the good cop/bad cop routine.
  • Ask to speak just to the bad cop, which neutralizes his power.
  • Warn you may come up with your own bad cop if this continues.
  • Play along and probe the bad cop’s reasoning like any other objection: why he feels that way; what’s the closest, acceptable alternative; ask whether the bad cop would prefer litigation.

Given the contrast in styles between the bad and good cop, what the good cop offers may be seen by the other party as a better deal. It’s another way to frame what’s on the table. You may not be crazy about A, but it’s much better than B. If you think this kind of approach might work, watch a few movies and brush up on your charm.