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Negotiation News: Volume 7, Issue 2

Sean Judge

Bad Faith Negotiation Tactics and Negotiators: How to Spot Them and What to Do About Them

On occasion, mediations stumble from the outset or otherwise take considerable time to get into serious negotiations. We've all been there. Questions like "why are we here?" or "we've been at this for over an hour and we aren't getting any closer" or simply "we're leaving" are frustrating ways to begin and conduct a mediation.

Often, this is the result of somewhat hard-nosed testing of an opponent's resolve or willingness to stay the course during mediation.  However, it may also be the result of "bad faith negotiation tactics."

So how does one spot them?  Let's take a look at both the tactics and the "tacticians."

Recall that the end product of mediation is a contract - one party agrees to do something in exchange for the act of the opponents' doing something in return.  Certainly, as lawyers there are ethical and legal consequences that flow from knowingly making false statements in the formation of a contract, and these constraints apply to negotiations. 

But what about bargaining in bad faith?  As Katie Shonk stated in her article How To Negotiate In Good Faith, (Harvard PON, March 19, 2018), bargaining in bad faith is evidenced by one who engages in mediation or other bargaining with no desire to actually reach an agreement. As "false negotiators," they know going in that their BATNA ("best alternative to negotiated agreement") is better than negotiating an agreement, but participate in negotiations for reasons other than coming to an agreement.

In the litigation context, false negotiation tactics are designed to extract the greatest amount of information without intending to enter into a negotiated agreement. Often times during negotiations, the parties make calculated decisions about how much and what information to reveal.  What if a significant piece of information is revealed that only elicits a minor concession from the other side?  Certainly, the mediator will have a better sense of the temperature in both rooms, but distinguishing "hard nosed" negotiation tactics from those in bad faith is key.

How might this distinction be detected?  False negotiators have a few key "tells":

  • Slowly dragging out the negotiation process with no focus or effort being made to actually come to an agreement.
     
  • Diverting and deflecting from the main issues, not answering direct questions, not focusing on the strengths of their case and weaknesses in yours.
     
  • Professing an inability to make a deal. Clearly, it is strongly preferred that decision makers with authority to resolve the case be present any mediation.  But participants who are not key decision makers (i.e., those with the authority to resolve the case in full) or who profess an inability to resolve the case either above or below a certain amount may be an indication that the party is not available to resolve the dispute.

The Takeaway: Bad faith negotiators and negotiations occur when a party is neither serious about resolving the dispute nor committed to the process of effective negotiation.  It is incumbent on the mediator and the parties to notice this, keep negotiations on track, and call out purely dilatory or distracting conduct. The most effective way to do this is to test the opponent.  Are they answering questions directly, do they truly have a strong case, or are they deflecting and distracting to use the mediation as a means to an end other than a negotiated agreement?  Each situation is different, but keeping these thoughts in mind should help sharpen your ability to detect bad faith tactics and bad faith negotiators.

. . .

I look forward to working with you again and helping you to resolve your cases and disputes. Please feel free to call me at (818) 610-8799 or (818) 262-1496, or email me should you have any questions or comments.

All the best, and I look forward to working with you soon!

SeanJudgeMediation.com -----------------------------------------

Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. He can be reached via telephone at (818) 610-8799, at www.judgemediation.com or via email at sean@judgemediation.com.

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How to Contact Attorney Sean E. Judge

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[* California Rule of Professional Conduct 1-400 requires me to inform you that the results obtained on other cases do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.]

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