[The following is a new, improved and retitled version of the December 2009 edition of Resolution Strategies]
The best drivers and the best negotiators share certain skills in common. Both anticipate the actions and reactions of others, and are quick to make any necessary adjustments. Both are acutely aware that sudden and unexpected maneuvers may cause a loss of traction or send things spinning out of control. Perhaps most importantly, both appreciate the importance of signaling their intentions well before coming to a stop, and the risks they face if they fail to do so.
Whether driving or engaged in settlement negotiations, slamming on the brakes abruptly can lead to unintended consequences, delaying or even preventing you from reaching your destination. Usually, the better and safer choice is to gently but consistently apply pressure to the brakes, letting those around you know — well in advance — that you are about to stop.
Last month, I mediated a case that serves to perfectly illustrate the point. Plaintiff, wanting to demonstrate good faith, began with a move that was significantly greater than anticipated. Defendant — against my recommendations — decided to ride the brake, responding with a move that plaintiff correctly deemed insulting. When plaintiff, as predicted, tapped the brake in response, defendant proceeded to tease plaintiff by stepping on the gas. When plaintiff, clearly confused, responded by also stepping on the gas, defendant hit the brake again, further frustrating plaintiff. After two more rounds of the same, defendant suddenly and unexpectedly slammed on the brakes, making a final offer that plaintiff could never accept.
If defendant had simply reciprocated in response to plaintiff’s first move and then followed plaintiff’s next moves with reasonable and predictable offers, while slowly reducing the size of each move, plaintiff would have continued to travel at a pace which would have given both sides confidence that settlement was possible. Instead, a case that should have settled ended in an unnecessary and avoidable impasse.
For those who hope to occupy the driver’s seat during settlement negotiations, it helps to know the best way to apply the brakes.
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 wishes for a Happy, Healthy and Peaceful 2016!
Floyd J. Siegal