{"id":654,"date":"2010-08-10T22:14:32","date_gmt":"2010-08-11T02:14:32","guid":{"rendered":"http:\/\/businessconflictmanagement.com\/blog\/?p=654"},"modified":"2010-08-10T22:14:32","modified_gmt":"2010-08-11T02:14:32","slug":"negotiating-with-the-king","status":"publish","type":"post","link":"http:\/\/www.businessconflictmanagement.com\/blog\/2010\/08\/negotiating-with-the-king\/","title":{"rendered":""Negotiating With the King""},"content":{"rendered":"

“You’d better be careful — you’re about to negotiate with the King!”<\/p>\n

We’ve all heard this at some point in our careers.\u00a0 Our counterparty is well-connected with the judge.\u00a0 He’s an influential member of the local bar.\u00a0 He has fifty years’ worth of hard-earned reputation as the lion of the district.\u00a0 He’s the man with the power.<\/p>\n

\"\"<\/p>\n

\u00a0<\/p>\n

A panel comprising mediator Elizabeth Bader<\/a> of San Francisco, insurance counsel Steven Joseph (of Western Word Insurance in New Jersey) and\u00a0Gerald Strachan (of Chartis Insurance in Philadelphia) and plaintiff attorney Jacqueline Tessendorf (of Columbus, Nebraska) shared perceptive and subtle views on how to get what you need from the King, across the negotiating table.<\/p>\n

Steven Joseph relayed his trial strategy:\u00a0 To say in his opening statement “I will promise you the following and I always keep my promises;” and to say in his closing argument “I like to argue cases that rely on a jury’s common sense, and\u00a0that’s why I like to argue this case.”\u00a0 He carries this strategy when negotiating with the King.\u00a0 He conveys at the outset, with politeness and\u00a0deference, that however many threatening hitters the King may have, he has Roger Clemens and he is entirely willing to play ball.\u00a0 This, said Joseph, is called getting back the power.<\/p>\n

Gerald Strachan reminded us that the King became the King for a reason — he has a formidable skill set and is by now used to being deferred to.\u00a0 So\u00a0Strachan is respectful to the King, because he needs the King to listen, to consider and to respect him back.\u00a0 The most effective\u00a0negotiators are ethical, experienced and trustworthy, and Strachan takes pains to be seen by the King as that kind of negotiator.\u00a0 He also demonstrates, early on, that he has the ability to take the King to a place the King doesn’t want to go.\u00a0 In a nutshell:\u00a0 He shows the King both that he can be trusted, and that he can compel an unpleasant result.<\/p>\n

Elizabeth Bader\u00a0took us to an uncomfortable but\u00a0familiar place: She noted that almost all negotiators enter the room with an inflated sense of confidence, which eventually becomes deflated until reality yields a resolution.\u00a0 She called it the “IDR Cycle” and cautioned that negotiator’s overconfidence in preparation infects their sense of who they are.\u00a0 The negotiator’s powerful gesture, unconnected to the reality of the situation, delays resolution and inhibits the real work of problem-solving.\u00a0 Real power, says Bader, is knowing who you are and negotiating from that place.\u00a0\u00a0Very often, when she mediates, she finds that is responsible for the process of getting inflated egos past deflation and into the reality of who they are, who they’re not, and how to solve the problem before them.\u00a0 “It’s about the shared problem,” Bader said; “it’s not about them.”<\/p>\n

Ms. Tessendorf begged to differ.\u00a0 As claimants’ representative, she said, “It is absolutely about them.”\u00a0 The defendant has injured her client.\u00a0 Her client has been unable to get over it.\u00a0\u00a0Indeed, her client is obsessed by it, she can’t get past it.\u00a0 The lawyer assisting this client needs to help her get through this strong emotion before the client\u00a0can be\u00a0ready to\u00a0negotiate.\u00a0 The claimant needs to say what she needs besides money, and the defendant (often an insurance company, not the tortfeasor himself) may not understand why.\u00a0<\/p>\n

Ms. Tessendorf gave a memorable example of a client seriously injured when a car crossed the center line.\u00a0 The client needed to know why — what had the driver been doing beforehand?\u00a0 Were they drinking?\u00a0 Sneezing?\u00a0 Talking on a cell phone?\u00a0 Reaching for a fallen cigarette lighter?\u00a0 Neither attorney understood the claimant’s insistence on this — liability was conceded and they didn’t need to establish that fact that the client sought in order to settle the case<\/em>.\u00a0 But Ms. Tessendorf eventually realized that they needed it to settle the claimant<\/em>.\u00a0 It turned out that the other driver was trying to brush off a spider that had descended on her and was inattentive.\u00a0 The client, for the first time, learned what had happened, how the accdent had occurred.\u00a0\u00a0The claimant needed to tell how bad things have been for her, and needed to learn why they had happened.\u00a0 She needed to satisfy her emotional inquest (if you will).\u00a0 She needed to get an apology.\u00a0 Without respect for these emotions, at least in this case, there could have been\u00a0be no eventual, “reasonable” outcome.<\/p>\n

Mediator Bader wholeheartedly agreed.\u00a0 For all the professionals at the table, who do this every day, there is one person — the claimant — for whom this is the greatest tragedy of their life.\u00a0 The King may not care why the car crossed the center line, but the mediator and the claimant’s representative must.<\/p>\n

Some other gems from this insightful discussion:<\/p>\n