Like most Americans, I’ve been watching the current budget/debt ceiling crisis in Washington D.C. with a mixture of awe and incredulity: awe at the sheer recklessness of supposedly professional politicians in putting the nation’s economy and fiscal reputation at risk, and incredulity at their seeming ignorance of the fundamentals of negotiation.
Most of these politicians are lawyers like me, and most of them must have had at least some experience in high-stakes negotiations, either as litigators trying to reach settlements, or (like me) as commercial lawyers trying to reach contractual agreements on behalf of their clients. Yet none of the principals in the current fiasco displays the slightest familiarity with the basic rules of effective negotiation that apply in the real world.
Hence, as a public service, I herewith offer a few dispute resolution techniques, drawn from the world of actual commercial negotiations, that might be of help in the current crisis:
1. Don’t Show Up. Nothing befuddles your opponent, who may have gone to great effort and expense to meet with you, like simply failing to appear. Let him or her munch on those cookies in the conference room, wondering where you are and what on earth you could be thinking, while you cool your heels back at your office, dreaming up your next snarky put-down of his or her position (see below). If he or she does eventually track you down on the phone, say glibly that there’s no point in meeting to discuss things as your own position is so obviously correct, and besides you had a hair appointment. Likewise, make no effort at all to socialize with or otherwise get to know your opponent. It helps in this regard to assume an air of lofty remove, as though mere interpersonal relations have no meaning to a hard-working intellectual like you.
2. Re-open points that are already settled. Say you spent a couple of years closing your deal, the documents are signed, and there’s even been a litigation over the enforceability of the agreement, resolved in your opponent’s favor. Why should that stop you from trying to change everything you don’t like about it? Insist on renegotiating, and if your opponent balks, simply threaten not to pay what’s been contractually agreed. When your opponent points out that it’s a “done deal” (as we lawyers say), call him unreasonable (the absolute worst lawyer’s insult).
3. Offer nothing in exchange for what you want. When you’ve exhausted your efforts to evade a meeting and do eventually sit down to talk turkey, be sure to insist that the other side give you 100% of what you want. (Every canny negotiator knows that if you start with a more moderate position, you might end up with some sort of compromise, God forbid.) When asked what you offer in return, act insulted and say that you’re offering your opponent the opportunity to do what’s right. Worth it just to see the look on his face.
4. Exaggerate the consequences of compromise. When pressed to explain your intransigence, say that any weakening of your position would mean the end of western civilization. Use those exact words.
5. Insult your opponent. Your opponent may have law, logic, and precedent on his or her side, so be prepared to get personal. Attacks on his or her character, goodwill, upbringing, intelligence, patriotism, and/or taste will usually buy you time and may even curry favor with your clients, who will assume you have something up your sleeve to save their bacon even if you’re just ranting. And since everyone involved is a professional, these ad hominem attacks will be soon forgotten, won’t they?
6. Talk too much. Once you have the floor, drone on about your position and its merits, and your opponent’s position and its demerits, for as long as you possibly can – days, if possible. This can have the dual effect of forcing the other side to listen to your point of view over and over to the point of nausea, and making them think you might in fact be quite crazy and capable of anything, which can only be to your advantage (see below).
7. Employ the “madman” theory. Made popular by Richard Nixon during the Vietnam War, this theory of negotiation holds that if your opponent believes you capable of anything, he or she will be more likely to give you what you want to avoid the consequences of your insanity. Hence if, for example, you appear willing to put your entire joint enterprise into bankruptcy merely to avoid coming to terms with the other side, the likelihood of their capitulating to your position increases exponentially. This technique can be extremely effective, but should be applied sparingly, since there is always the possibility that your clients also come to believe you are crazy, and fire you.
Some of these negotiating techniques may seem extreme, but rest assured that those of us who actually get deals done for a living have seen most of them in real life situations, and we can tell you how well they work, and how those who employ them are regarded. Happy to help!