Gaining the Upper HandPart V Negotiation with Difficult People

Victoria Pynchon, ADR Services, Inc.

The Population of Iraq

28,221,180

– Nature of problem deal is capable of resolving

– Characterize deal in way favorable to your strengths• Routine extension of

old rather than new “deal”• View sale of biz as

stand-alone vs. synergy created by acquisition by buyer– Focuses on future

rather than present– Focuses on value to

BOTH parties

Negotiating from a Position of Weakness

Don’t reveal own weaknessLeverage their Weakness

Identify and value your worthEstablish metrics of value that satisfy party interests:

attorney-client partner-associate

plaintiff-defendant attorney-judge

Reframe Weakness as Strength

• 1912 Presidential campaign

• Used photo of Roosevelt without permission

• 3 million copies printed• Penalty $1/copy

• Telegram: planning to print 3 million copies of campaign speech. Excellent opportunity for photographers.

• How much are you willing to pay us to use your photograph?

• “Appreciate opportunity but can afford to pay $250.”

“How David Beats Goliath” 5/11/09 New Yorker

• Last 200 years of warfare– Goliaths won 71.5% of time– Contests where Goliath has 10x >

power, Davids win nearly 1/3rd of the time

– Where “Davids” chose unconventional strategy, won 63.6% of the time• Bedouins v. Turkish

– Speed, time, endurance, knowledge of terrain, courage

– “art of war [is] about legs not arms”

• Full-court press– Endurance, stamina– surprise

Wrap Your “No” in a “Yes”

• People err in one direction or the other by:–Prioritizing the relationship & saying “yes” when

want/need to say “no” or–Prioritizing power by brusquely saying “no” or– Taking middle ground of avoidance saying nothing &

hoping a problem won’t arise

Be consciousAsk questions

Require cooperationProblem solve

An attorney should avoid negotiating tactics that are

• abusive• not made in good faith• threaten inappropriate legal

action• not true• set arbitrary deadlines• intended solely to gain an

unfair advantage or take unfair advantage of a superior bargaining position; or

• do not accurately reflect the client's wishes or previous oral agreements.

California Attorney Guidelines of Civility and Professionalism