Lesson 1, Topic 1
In Progress

2.2 Reasons why negotiations fail are listed and an indication is given of what negotiators can do to facilitate a mutually satisfactory solution.

ryanrori January 7, 2021

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Caution your client that the road to client-directed negotiations is not without bumps, detours, and even washouts. I would estimate that only about one-half of my clients successfully negotiate all the items in the divorce agreement with minimal intervention from me. Negotiations are as unique and complex as the people involved

Why, Then, Do Some Negotiations Fail?

There are eight common reasons:

  • The “fixed pie” mentality
  • Buyer’s remorse
  • Asking for too much at the beginning
  • Winning can be self-defeating
  • Starting negotiations with the “chip on the shoulder” syndrome
  • Lack of preparation
  • Letting your client push the party into a corner
  • Lack of tolerance for risk and uncertainty

The “Fixed Pie” Mentality

These negotiations fail because each party assumes that there is only a fixed amount to be negotiated and, in order for one person to win, the other must lose. To overcome this negotiation impasse, one or both of the parties must start considering acceptable compromises which permit them to expand the size of the pie

Buyer’s Remorse

This is often observed when one party accepts an offer too quickly. The other party then feels that it must not have been as good a deal after all, and that the acceptor had better information. This situation can be avoided by acquiring as much knowledge about the facts of your case and the applicable law as possible, while obtaining as much information as possible about the bargaining opponent’s viewpoint.

Asking for Too Much at the Beginning

It is not uncommon for parties (and, yes, even lawyers) to commit the fundamental negotiating error of starting the bargaining with extreme demands, figuring that the case will find a middle ground later. Sometimes, however, the parties (and, again, even lawyers) get caught up in the struggle, spending large sums on court costs and attorney fees, and generally investing so much of their money and egos that they have gone too far to back off. As a result, parties end up taking a hard line. Friends and others may wonder why the conflict keeps escalating, thinking that maybe it is the attorney’s fault. Sometimes it is the attorneys who have contributed to the conflict. More often, however, it is the parties themselves

Winning Can Be Self-Defeating

An emotional investment in “winning” often makes negotiations impossible. It springs from our competitive spirit and the images of defeat that follow a person who unilaterally “gives up” or reduces demands. No one wants to come in second. Therefore, it is important that you stop and put the brake on by jointly evaluating the costs and benefits of keeping the present position. Negotiations are not a contest. With some creative thinking, a better deal can be found for both parties

The “Chip on My Shoulder” Syndrome

Trust, the most important ingredient to negotiation, is in short supply in the middle of a dispute. It is important, however, that the client not be experiencing self-defeating emotions before going to the negotiating table–or the client should not be at the table alone. If all this client does is antagonize the other party and attack that party’s sense of self-worth, you risk any negotiation gains that might have been realized had your client been in a more mature frame of mind. Better to tell the client to write a long, angry letter to the party…and then tear it up.

Letting Your Client Push His/Her Party into a Corner

Never push the other party into a corner or otherwise make the party feel committed to struggle to the bitter end. The threat of “loss of face” can ruin even the best intentioned negotiations.

Lack of Preparation

It is a common problem, particularly for those who have not clearly thought out what their negotiation objectives are, to let an issue be discussed in negotiations when the parties are not prepared to handle it.

Lack of Tolerance for Risk and Uncertainty

Imagine you have a choice between a sure R50.00 and a coin flip which would give you R100.00 or nothing. If you have a strong desire to choose the coin flip, you are a risk-preferrer in that situation. If you want the certain R50.00, you are risk-adverse. The risk-preferrer has an advantage in a negotiation, because he or she has a greater tolerance for the possibility of “losing”.