Dirty Tactics And What To Do About Them

We’ve all seen them – most of us have used them – the hard bargaining tactics employed during a tough day at the mediation table.

But do they work? Do they help us get a better deal for our clients or do they make the negotiation harder than it needs to be? How can we prepare our clients for these tactics and what can we do about them on the day?

Typically, when faced with a tough opponent parties either:

• try to meet hard tactics with hard tactics, meaning the mediation becomes lost in adversity and combat; or
• surrender, meaning the confrontation is avoided but the bully gets his or her way.

The following are the top 10 tactics seen in negotiations (Mnookin, Peppet and Tulumello Beyond Winning: Negotiating to Create Value in Deals and Disputes (Harvard University Press 2000)).

Extreme claims followed by small, slow concessions

This is the most common bargaining tactic you will see around a mediation table – especially in a one-day mediation. The parties start high (or low) and concede slowly. The tactic is often used when the parties are dealing with a monetary payment and a zero-sum game (where one dollar more paid to one party means one dollar less to the other party). The tactic has certain advantages: by conceding slowly at the start it allows for bigger concessions to “close the gap” at the end of the mediation. It also provides for anchoring – an initial extreme offer can limit the other party’s perception of the bargaining range (despite that party knowing the offer is extreme and self serving). The disadvantages: it will protract the negotiation and it may reduce the chances of an agreement being reached. A party can also lose credibility if they then start making significant concessions.

Commitment tactics

This is where a party ties its own hands or gives itself only limited discretion. The intention is to force the other party to accommodate this limitation and in doing so influence that party’s view of what agreements are possible. In order to be effective, the commitment must be seen as binding, credible, visible, and irreversible.

Take-it-or-leave-it offers

If a party states that its offer is non-negotiable it runs the risk that the mediation will come to an end if the offer is not accepted. If both parties play chicken there will be no deal. You can address this approach by making a counter offer. If the other party continues negotiating – they were bluffing (which is the norm).

Inviting unreciprocated offers

This is commonly referred to as bargaining against oneself and it occurs where a hard negotiator states that the first offer is insufficient and requests a better offer before they will consider it. The response: do not bid against yourself.

Trying to make you flinch

This occurs where demand after demand is made until the recipient indicates (normally by his or her conduct) they have reached their breaking point. The advantage of this tactic is that the party making the demands gets to call the shots and exposes the other party’s true bargaining limit.

Personal insults and feather ruffling

Personal insults cause an emotional reaction which throws the party insulted off balance and flusters him or her. If the attacks continue and the party remains flustered they have lost the psychological advantage.

Bluffing, puffing and lying

Overstating or misrepresenting facts can alter the other party’s perception of what would be an acceptable settlement.

Threats and warnings

Here the promise is that drastic consequences will result if demands are not met. A common example is the threat of going to the media.

Challenging alternatives

If a party can undermine the other party’s BATNA (Best Alternative to a Negotiated Agreement) they can alter to their advantage the levels at which the other party would settle or not. This is achieved by trying to influence in a negative way what the other party thinks of its own alternative course of action.

Good cop, bad cop

We have all seen enough movies to know what this is about. This tactic can be employed by just one negotiator – by being both aggressive and conciliatory in approach (hot and cold).

How to deal with the dirty tactic in preparing for mediation

These tactics all have one aim – to knock the recipient off balance and to weaken their resolve and position. These tactics can drive a party from a place of calm analysis to emotional, automated, unthinking reaction. These tactics also narrow the recipient’s perception of the options available to them. The response of your client to such tactics needs to be premeditated and both internal and external.

Internal approach

This is your client’s level of self-awareness. Participants need to be self-aware as to when they are being triggered and when their emotions are about to kick in and change their negotiating stance. To be effective in mediation your clients need to know themselves and they need to do this work in advance. In preparing for mediation, you and your client need to consider who you are up against and the areas where the opposition might “press your client’s buttons”.

You need to plan for what they might say, how you might respond and how you are going to keep both yourself and your client calm and collected in the face of such an attack. During the mediation your client needs to maintain self-awareness and be able to diagnose what is going on in them so that they don’t fall into the trap of simply reacting. As advisor you need to be self-aware too and follow a similar process.

External approach

You need to be an active listener and you need to encourage your client to actively listen as well – you need to be able to enquire of your opponent and their client, to paraphrase what they are saying and to be able to acknowledge their feelings in a meaningful non-inflammatory way.

You need to be able to implement game changing tactics when faced with a tough opponent. Doing so takes the power away from their tactics and puts the focus back on substantive matters. This can be achieved in a number of ways:

Reframe

Re-characterise what your opponent is asking for. Do this by:

• making enquiries of them to re-characterise their demands;
• reframe the options that are on the table; or
• reframe the criteria that your opponent is working with. For example, get them to break down where their numbers come from if they are making an extreme claim or demand for payment.

Name the game

Describe to your aggressive opponent what they are doing. You describe to them your experience with the dynamic in play. For example, if personal insults and feather ruffling are the tactics employed then in response you ask why they chose to do that – what is their purpose in seeking to threaten you?

Change the players

An example of this is where two parties have been negotiating and they reach a stalemate or are in personal conflict with each other so cannot continue productively. To change the dynamic they bring in a third party facilitator to help them work through the issues or change the representatives for one or both parties. Another example is when you try to return something to a retail store and getting “no” at the first instance you then work your way up the authority ladder until you find someone who will agree with you.

There are other tactics that you can employ to counter a tough negotiator:

• as soon as you recognise one of the above tactics being used (or about to be used) – name it and prevent it being fully deployed;
• seek an explanation – break down the tactic by staying calm and asking for a rational explanation for what the other side are saying or doing;
• invite the other side to reconsider what they are doing or insist that they withdraw a certain statement or position (or demand an apology);
• seek assistance from the mediator; or
• take a break or walk out.

Published in New Zealand Law Society’s ‘LawTalk 901’  17 November 2016.