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Harold Lenfesty: Posted on Friday, December 17, 2010 10:33 AM
During a recent negotiation I was involved in, the discussion began with the other party threatening to arbitrate if their demands were not met. Arbitration clauses are common place and certainly make sense but in this case we didn’t need to start out as adversaries and arbitration was neither necessary nor appropriate at that stage. They came on as bullies to make the point that they were in control and their representative seemed to relish trying to throw his weight around. Negotiations can bring out the best and worst in people and can also be significantly affected by your choice of representative. Often, not always, it is a reflection of your own preferred style and how you want the negotiations handled. This may not come in the form of an explicit request to be aggressive but turns out that way because of the negotiators style. This is different than being tough on the issues. Your counsel can be tough about your point of view but it is unwise to start discussions with threats that cause hackles to be raised and hamper finding common ground. Unfortunately it appeared to us that the negotiator was riding on past success, was poorly informed and hadn’t read his material carefully. In the end an agreement was reached which could have been accomplished without acrimony had we started off differently. Interestingly, arbitration only applied during the term of the agreement and had my client not accepted their terms the agreement in place would have ended and there would have been nothing to arbitrate. Again, the negotiator was ill-informed and using a threat he didn’t fully understand in practice. Your choice of negotiator reflects on you so choose wisely. |
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