Years ago, I was involved in contract negotiations with an NFL Team. We were negotiating on behalf of a defensive lineman — a position that generally gets little recognition or respect. Yes, it might have been easier and more lucrative to be negotiating for the quarterback. If this was an inherent shortcoming in our situation, we accepted it. Our financial demand was based on comparative analyses and perceptions of value, both current and future, given we were negotiating a multi-year deal. The team’s offer was based on … well, that was hard to figure out.
When we reached a stalemate at what I recall was the third session, the GM angrily told us why we had not been successful. His words were something like: “When you come in here, here’s the way we negotiate. I give you a number, then you give me a number that’s a little bit higher. Then I slightly increase my number, you agree, and we’re done in five minutes.” He then proceeded to (figuratively) throw us out of his office. Fortunately, there was still time to get something done, and we did.
The experience illustrates the following mediation points:
- A rational, metrics-driven, financial analysis may not sway the other side. How you present, react to, and value, all claims and needs of the parties impacts success.
- Acknowledge and allow for inherent or emerging shortcomings in your situation. Is your client a relatively modest wage-earner? Is your party successfully mitigating damages, thereby driving down economic value? Work with the facts you have, not the ones you’d like to have.
- Assess the impact of the passage of time. Will your negotiating position be better or worse in a few months? In a year? For example, will a key witness be unavailable or uncooperative in the future? Don’t assume those remaining third party depositions will enhance your case.
- You need more than five minutes to negotiate something important. Having everyone comfortable with a mediation process that lasts several hours, or several days, in a setting that fosters “give and take,” and “talking and listening,” sets a strong environment for resolution. Trial attorneys know the process, but clients often need some preparation.