Have you ever noticed that the best drivers and the best negotiators share certain skills in common? Both anticipate the actions and reactions of others. Both are quick to make necessary adjustments. Both are aware that sudden and unexpected maneuvers can 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 complete stop — and the risks inherent in failing to do so.
Whether one is 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. The better and safer choice is to gently but consistently apply pressure to the brakes, alerting those around you — well in advance — that you intend to come to a stop.
To illustate my point, consider a mediation I once conducted. Wanting to demonstrate good faith, counsel for plaintiff began negotiations by reducing the demand more than defendant anticipated. Defendant — against my advice — insisted on “riding the brake,” responding with a lowball offer that plaintiff understandably deemed insulting.
As I feared, plaintiff tapped his own brakes in response, which led defendant to “tease” plaintiff by suddenly making a significantly larger move. Appreciative, plaintiff made another generous move, only to have defendant hit the brakes again, further confounding and frustrating plaintiff.
After two more rounds of the much of the same, defendant abruptly and unexpectedly slammed on the brakes completely — extending a “take it or leave it” offer that plaintiff summarily rejected.
If defendant had simply reciprocated by responding to plaintiff’s first move with a more reasonable offer and then continued to respond to plaintiff’s next moves with reasonable and predictable offers, while slowly reducing the size of each move, I’m convinced plaintiff would have continued moving at a pace that would have given both sides confidence resolution was possible. Instead, a case that should have and probably could have settled resulted in an unnecessary and avoidable impasse.
If you’re planning to occupy the driver’s seat during settlement negotiations, be sure you know how to effectively 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 regards,
Floyd J. Siegal