gaining the upper hand in negotiations
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Part V of Negotiating with Difficult People for LawyersTRANSCRIPT
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