In conflict resolution, there are hard negotiators and soft negotiators. Hard negotiators are the ones who take very aggressive positions, demanding sometimes more than they’d get on their best day in court, and making only minor concessions as the mediation progresses. Hard negotiators often refuse to explain the reasoning behind their positions, and they rebuff discussion of any fairness standard in determining the possible terms of an agreement. They don’t discuss their BATNA (Best Alternative to a Negotiated Agreement), at least not with the other parties or, in most cases, the mediator. They will look you in the eye and say that an offer is their “last and best”, even when it may not be. They will sometimes make a show of threatening to leave the mediation. In one recent case, a hard negotiator refused to give us a lunch order, insisting that the matter would either be settled on his terms or impasse before lunch. (It wasn’t, and he was hungry.)

The mediation gurus will tell you that the way to deal with hard negotiators is to change the game. They warn against going toe to toe with hard negotiators, just as you would avoid trying to match move for move in jiu-jitsu. Instead, these top mediation professionals advise that you should redirect a hard negotiator by calmly and consistently engaging in “principled negotiation”, which contemplates that the parties are aligned in reaching a resolution based on a fair standard which satisfies the main interests of the parties.

Yes, principled negotiation is the ideal. But sometimes — perhaps more often than not — hard negotiators cannot be dissuaded from their tactics, even by very astute and experienced mediators. (Changing the game to principled negotiation will be discussed in its own blog post sometime soon.)

So what to do when faced with the intransigent hard negotiator? Here are a few ideas.

  1. Change the goal. In horse training, people have to accept that a human cannot overpower a 1200 pound horse. So if a horse refuses to, let’s say, move to the left, a horse trainer may instead work on moving the horse to the right, or even backwards. Once you get the horse moving, he is more likely to move in the direction you want to go, even if you have to circle around to get there. Dealing with hard negotiators can utilize the same approach; instead of trying with all your might to get direct movement, try getting movement in some other direction, i.e. on a different point, a different framework for resolution, or a different approach to resolution altogether.
  2. Focus on your BATNA and improve it if you can. Our last blog post discussed the importance of each side’s BATNA. You can only combat a hard negotiator by the knowledge of your Best Alternative to a Negotiated Settlement, and the better your BATNA, the stronger your negotiating position will be. In one recent case, a trustee decided that her BATNA was to resign as trustee, and when met with hard negotiators, she pulled the cord and jumped. Her BATNA was better than the terms of what she was offered.
  3. Adjourn mediation. Sometimes a hard negotiator needs to take some hits in discovery or motion practice. Sometimes you need some additional information, or an expert witness, or an accounting or appraisal, to be able to move the hard negotiator off an unreasonable position. There is no disgrace in adjourning mediation until a later date so that you are on better (more equal) footing.
  4. Ask a lot of open, genuine questions. Try to disarm the hard negotiator by digging to find out the reasoning behind an offer. While not all of your questions may be answered, just the act of asking questions changes the dynamic from one which is combative to one where there is renewed focus on what is behind the parties’ positions. This is part of the principled negotiation concept, but it stands alone as its own method as well.
  5. Enlist the mediator’s help. A skilled mediator should seek ways to help the parties progress toward settlement, not just act as a conduit of offers and counter-offers. Point out your concerns about the other side’s negotiating tactics to the mediator, and ask her if she has ideas to get the mediation on track. One possibility, if the timing is right, may be for the mediator to suggest a bracket, which is a range within which a settlement would be agreeable to both sides. Another is to think about some creative structures and options which move the negotiation down a different path. Or, the mediator may have to spend time engaging the party on the other side about the reasons why settlement is usually a better option than litigation. On rare occasions, the mediator may need to speak with the hard negotiating attorney to determine whether that attorney is intentionally blocking the settlement process.