A different kind of negotiation
Yesterday I took part in another role-play for the Negotiation Workshop. Without giving too many of the details away, I represented a man who had broken his neck using a Super Slipster, a water toy designed for children. This man, Adam, sued the company that manufactured the toy for $13 million in damages.
What made this negotiation feel so different than the ones I’ve done before was the simple fact that it was so numbers-intensive. In “Sally Soprano,” price was definitely a factor, but the larger issues to resolve were Sally’s publicity and future career prospects. And in my very first negotiation, in which I represented a filmmaker in a dispute with her producer, money was hardly an issue at all; the dispute was mostly about exercise of authority. But in yesterday’s case, while non-tangible underlying interests were present in the background, the negotiation definitely centered around putting price tags on these interests. For me, it’s much easier to identify common ground and create value when prices aren’t an issue. Yesterday, the numbers felt like a frustrating distraction from what I saw as the real substance: Adam’s disability and the devastating effect it had on his life.
As a result of all this, during the actual negotiation I all too often tended to stick with positions, rather than interests. Having the numbers ever-present on the table made it easy to get bogged down in the math, and to anchor to one figure or another. And when we as lawyers are only authorized to agree to a certain minimum settlement, this number feels like a shadow looming over the rest of the negotiation.
Unfortunately, I’m guessing that in most negotiations, prices and money will be an associated, if not central, concern. Particularly in a legal context, my impression is that monetary settlements dominate the negotiation landscape. But maybe I just watch way too much Law and Order.
Looking back on the negotiation last night, I began to realize the effects of focusing so much on money and letting the larger interests fade into the background. While I think our settlement did address Adam’s interests – he got enough money to pay his medical expenses and protect his family, and the product was taken off the market – I found myself facing what’s rapidly becoming a familiar refrain for me: I could have gotten a better deal! Before negotiating, I tried to think about creative options relating to the money – but I completely missed the opportunity to create non-monetary value, perhaps because I was just so focused on agreeing to a certain price.
I think it will be a challenge for me in money-based negotiations to apply my skills in the same way as in other situations. I guess the lesson is that when underlying interests are present (as they almost always are), there are more ways to satisfy them than simply obtaining a large sum of money. This sounds completely obvious! But I’m rapidly discovering that in the heat of a negotiation, it’s very, very easy to miss the obvious.