[The following is an updated version of the November 2009 edition of Resolution Strategies]
“I’m not going to bid against myself.”
For a mediator, few things pose a bigger challenge during mediation than hearing those words. Within the past thirty days, I have confronted just such a challenge on multiple occasions, leading me to update and reprint this particular edition of Resolution Strategies earlier than I had originally intended.
Even the most skillful negotiator will sometimes paint himself or herself into a corner, leaving only two options: (1) make what Professor Barry Goldman, author of The Science of Settlement, refers to as “a consecutive unreciprocated concession,” or (2) refuse to do so, knowing full well that such a refusal will almost certainly result in a premature and perhaps unnecessary impasse. When those are the only viable choices, I encourage you to consider “the concession speech.”
As I’ve noted in other editions of Resolution Strategies, those involved in the negotiating process must cooperate with one another — even as they compete with one another — if they are to reach a resolution. Frequently, one party makes the mistake of undermining cooperation by being overly competitive – i.e., by making a demand or offer which, though designed to maximize that party’s bargaining position, is viewed by the opposing party as being so extreme and outrageous as to not merit a response. Once cooperation has been undermined, the surest way to reestablish cooperation is to accept responsibility for having been overly competitive and to then make some further concession.
The concession speech can take many forms. It can range from the humorous [“believe it or not, sometimes that actually works”] to the contrite [“that was an unfortunate mistake on my part”] to placing responsibility elsewhere [“my client insisted”], but it must sincerely communicate a desire to reestablish cooperation and engage in further negotiations.
Contrary to what many believe, the concession speech – when handled correctly – is not a sign of weakness. In fact, it can be rather disarming, often yielding unexpected benefits. For example, just last month counsel for plaintiff in one of my mediations was confronted with information which seriously called into question his client’s credibility. Despite having made a pre-mediation demand in excess of $200,000, to which there had never been a response, this attorney — to his credit — recognized that he had no choice but to “bid against himself” in order to reestablish his own credibility. Following a difficult discussion with his client, he authorized me to reduce his demand by nearly 85%. In doing so, however, he gained even greater credibility with defense counsel and the claim representative, who — to their credit — proceeded to go beyond their original settlement authority in order to reach a settlement.
There are other benefits that may also flow from bidding against oneself. Those with the confidence to do so may be viewed more credibly when they later indicate they have reached their “bottom line.” Similarly, those willing to bid against themselves are sometimes able to extract greater concessions from their opponent toward the end of the negotiating process, by reminding their opponent of the consecutive unreciprocated concession made earlier.
When your only choice comes down to bidding against yourself or engaging in an unwanted trial, the concession speech often proves to be a winning strategy.
As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards,
Floyd J. Siegal