The Intelligent Negotiator (22 page)

Another effective strategy for dealing with intransigent counterparts is to emphasize the areas of agreement, rather than the areas of conflict. Bring the discussion back to the areas in which joint gain is possible. Both sides will reaffirm your commitment to final agreements, and the areas of conflict will seem less critical.

U
SING
F
ALSE
C
ONCESSIONS

False concessions are effective when they generate guilt in the other party. Negotiators can accomplish this in two ways:

1. You can make concessions on items that you have no right to demand in the first place. A good example of this is the car dealer who agrees to drop the “dealer prep” or “processing fee” if the buyer agrees to raise his or her offer. These are dealer add-ons that simply increase their profit margin. Since such items do not really add to their cost, customers should not be expected to pay extra for these terms after they have agreed upon the specific price to be paid for the vehicle. Negotiators should always be wary of items cited by counterparts that do not increase the true value of what the participants are exchanging.
   

2. Make multiple position changes that make your counterpart think you have moved more than you had originally planned to move. This is exemplified by the car salesperson who asks for $24,000, moves to $23,750, to $23,500, and finally to $23,300 without any counteroffers from the prospective buyer. This individual then suggests that he or she has conceded more than he or she should have and says that further movement is impossible. The salesperson hopes to make the buyer feel guilty about this “excessive” movement and induce him or her to make a larger counteroffer. Whenever counterparts do this to you, remember that the critical factor is not
   how many
   concessions they have made, but
   how far
   they have actually moved. Base your decision on the actual distance they have closed between you.
   

P
REDICTING
D
ISASTER

Negotiators can obtain a bargaining advantage at critical points by threatening dire consequences if agreements are not achieved quickly. This tactic goes beyond
threats.
Here you talk as if the world will end should your counterparts not give in to your demands. Careless or naive bargainers may be influenced by this ploy, especially when they focus entirely on the harm
they
will suffer if the threatened consequences occurred. When teachers’ unions first obtained
collective bargaining rights, school districts used this technique against them. As negotiations progressed, the school district would announce the need to lay off all the untenured teachers if the union did not reduce its wage demands. The threatened teachers often panicked and reduced their requested pay increases. If they had evaluated the situation objectively, they would have seen through this idle threat. If all untenured teachers were actually laid off, the English or History departments would be understaffed and the school district would no longer be eligible for state educational funding. Over the years, teachers’ unions have become more sophisticated, and school districts resort to this tactic less often than they once did.

When your counterparts threaten extreme consequences if you do not yield to their positions, ask yourself two questions:

1. Are the threatened consequences likely to occur? When you step back and evaluate the situation objectively, you may realize that your counterpart could not possibly do what they are threatening.
   

2. If the negative results might occur, how would those results affect your
   counterparts?
   In many cases, if the threatened consequences were to occur, they would be more devastating for your adversaries than for yourself. When this is true, your counterparts would be crazy to take a course of action that would hurt them far more than you.
   

P
LAYING
B
RER
R
ABBIT

In his classic book
Uncle Remus,
¹
Joel Chandler Harris created the unforgettable Brer Rabbit. When Brer Rabbit
is caught by the fox, he tells the fox he can drown him, roast him, or skin him, so long as he does not throw him in the briar-patch. Since the fox is intent on punishing Brer Rabbit, he chooses the one alternative the rabbit seems to fear most; he throws Brer Rabbit in the briar-patch, and Brer Rabbit is able to escape unharmed.

Brer Rabbit is a “reverse psychology” ploy that can be especially effective against adversarial
win-lose
counterparts who judge their success more by how poorly you do than by how well they do. When you encounter such bargaining partners, initially demand your secondary objectives—items A, B, C, D, and E. Then indicate that at a minimum you would have to have X, Y, and Z, which are your real first choices. If you are convincing, your win-lose counterparts will literally force on you items X, Y, and Z! You have to play the game to the end, which means suggesting that these are your least beneficial items and by asking if they could possibly give you some other terms. Your counterparts will smile as they reject your request for better terms, believing they have annihilated you!

I had a dean at another law school who always gave faculty members their second choices to demonstrate who held the bargaining power. One of my colleagues was thinking of submitting a request for a monetary grant he desired. He could either obtain this financial support by teaching summer school or by agreeing to work on a research project. In prior years, he had indicated his preference for a research stipend, but had always been given his second choice—a summer teaching assignment. When he told me about these experiences, I suggested that he describe a summer teaching assignment as his first choice, with the research stipend being his second choice. Since summer teaching duties paid more, this did not seem disingenuous. He was afraid the dean would give
him his insincere “first choice.” I replied that the dean never gave anyone their stated preference. With great reluctance, he listed summer teaching as his first choice, with a research stipend as his fallback alternative. Several days later, the dean notified him that it was not possible to give him the summer teaching assignment he had requested, forcing him to accept the research stipend he actually wished to obtain.

Never use Brer Rabbit against normal win-win opponents. If you demand items A, B, C, D, and E from win-win counterparts, they may think you are being sincere and give you the items you don’t really wish to obtain. Only use the Brer Rabbit approach against extreme win-lose adversaries who hope to destroy you by forcing on you the terms they think you least hope to get.

A
SKING
“S
O
W
HAT
?”

When negotiators make concessions, they want to be sure their counterparts give them credit for their position changes. You can sometimes obtain a bargaining advantage by suggesting that your counterpart’s concessions are worthless to you. They may improve their offer or make additional concessions in response. However, never permit your counterparts to do this to you. If they try to devalue your new offers, indicate how valuable what you have given up is to you and ask whether they would mind if you kept those items for yourself. If they are really of no value to your counterparts, they should not mind if you withdrew them. You will be amazed how quickly your counterparts will protest when you try to reclaim the
items they disingenuously indicated were of minimal value to themselves!

A
PPEARING
D
ISINTERESTED

Along similar lines, you can sometimes instill doubt and get your counterpart to make a position change by appearing disinterested when he or she is making important points. But never permit counterparts to do this to you. If they try to ignore your presentation, ask them probing questions, such as “What are the weaknesses you perceive in my position?” Ask them to state the terms they need to obtain. Ask them to explain the reasons for the positions they are taking. Through such questions, you can force seemingly disinterested parties to become more participative.

G
OING
B
ELLY
-U
P

Belly-Up is one bargaining technique that is especially difficult to counter. It entails acting like a wolf in sheepskin. A Belly-Up negotiator wears old clothes and likes to negotiate at the homes or offices of his or her counterparts. When using this approach, indicate how lovely the environment of your counterpart is when you arrive. Then profess your own lack of negotiating ability and praise your counterpart for his or her reputation as a highly skilled negotiator. You can use this self-deprecating approach to evoke your counterpart’s sympathy and lure him or her into a false sense of security.

The epitome of the Belly-Up approach was artfully created by actor Peter Falk in his Lt. Columbo police detective character. The inspector seemed to bumble along during criminal investigations with no apparent plan. When he interviewed suspects, he did so in a completely disorganized manner. By the time suspects realized that Lt. Columbo really understood what was going on, they had confessed and were in police custody!

Belly-Up negotiators are among the most difficult people to deal with because they do not participate normally in the bargaining process. Using feigned incompetence allows you to forego engaging in the usual give-and-take. So does professing your total inability to know what would be a fair result and asking your counterpart—the recognized expert—to suggest terms he thinks would be equitable.

Although your counterpart had planned a tough opening position and established a high aspiration level, his conscience begins to bother him. He can’t take complete advantage of you, the incompetent opponent, so he significantly modifies his planned opening position in your direction. Now you’ve got him. Praise him immediately for his generosity and obvious effort to do what is right, and then indicate why his proposed terms would not be sufficient to satisfy your particular needs.
“Yes
you have made a generous offer,
but
those items would not be sufficient with respect to X and Y.” He quickly suggests changes in the hopes of satisfying your newly stated needs, only to have you once again indicate the need for further movement. By the time he is able to obtain your assent to his proposals, he is naked! You have adroitly stripped him of everything. The most amazing thing is that your counterpart feels so good about his ability to
satisfy the needs of his pathetic counterpart that he can hardly wait to assist you in future encounters.

You should never allow seemingly inept counterparts evoke such sympathy that they induce you to concede everything. It is not fair for one side to make the other party do all the work. Don’t permit practitioners of this technique to get you to alter your planned approach. If you are bargaining with a Belly-Up negotiator, articulate your originally formulated position at the outset. When she appears totally disappointed and requests immediate modifications, ask
her
to state and defend
her own opening position.
It is the last thing she is prepared to do. She hopes to get you to state your position and continually alter it until it suits her needs. By compelling her to articulate her own position, you will force her to participate. You can then challenge the terms of her proposal and force her to defend the items she has requested. Belly-Up negotiators are not used to discussing their own positions. Once you place them in this position, their ability to make you do all the work is negated and they are forced to resume normal bargaining.

I have met several lawyers who told me that when negotiations become difficult, they place their hand over their heart and have a pained expression on their face. If this doesn’t moderate opponent behavior, they reach into their desk drawer and take out a vial of what appears to be nitroglycerin tablets. A rather perceptive and assertive female attorney I know once encountered such an opponent. When he placed his hand over his heart, she continued her tough negotiating tactics. When he withdrew the “nitroglycerin” vial, she didn’t alter her behavior. He couldn’t understand why his Belly-Up approach was not affecting her conduct—until she finally asked him what
his time was in the marathon the prior weekend. Both negotiators had run in the same race, and he had worn such a colorful outfit that she remembered him. She thus knew he had no heart problem. The closest that attorney ever came to a heart attack was when she asked him about his time in the marathon. He became so disconcerted that he had to leave his office to regain his composure. After he returned, he gave up the Belly-Up charade.

In some instances, particular negotiation ploys may be used in isolation (such as the “Belly-Up” ploy). In most instances, however, two or more different techniques are brought to bear simultaneously or in sequence in an effort to keep adversaries off balance (for example, “Mutt and Jeff,” “Anger,” and “Limited Authority”). When you negotiate, carefully monitor the tactics being employed by your counterparts. This is the best way to counteract them when they are being used against you.

P
ASSIVE
-A
GGRESSIVE
N
EGOTIATING

A Passive-Aggressive negotiator is as difficult to deal with as a Belly-Up bargainer. Instead of directly challenging their counterpart’s tactics and proposals, they employ devices that indirectly disrupt the negotiation process. They usually appear to be laidback and disinterested. They may show up late for scheduled meetings and fail to return their counterpart’s phone calls. They may forget to bring important documents to scheduled bargaining sessions. They lead unsuspecting adversaries to think they don’t care whether agreements are achieved. If they weren’t interested, why would they continue to meet with you? But they are
not
laidback persons. They
are in fact extremely aggressive persons who display their anger indirectly.