Negotiating with the devil!

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Negotiating with the devil! Can you settle with someone you believe to be a crook?

This was a focal point in a mediation I conducted last year, and also has been experienced by a colleague. How can a mediator help to resolve a dispute where one party believes, probably correctly, that the other party is dishonest?

In my case, once I had established that the defendant’s solicitor could not be moved from his perception that the claimant was a crook, I had to try to move the discussion away from any area where the honesty or truthfulness of the claimant was relevant. In other words, all I could do was to seek objectively verifiable facts on which to work.

That was not as easy as it sounds, as some correspondence was, at the least, ambiguous, and the defendant inevitably took an adverse view of it. But experience shows that deals can and should still be done, taking into account any problems a party is likely to encounter regarding credibility in Court.

The claimant, who, in another matter, had a finding of dishonesty against him, should have been prepared to discount his prospects of litigation success in reaching a settlement, and the defendant should have realised that objective evidence would stand up regardless of any previous dishonesty of the claimant. Sadly the parties would not move far enough towards each other to reach a settlement.

In a different case, in which another very experienced and able mediator acted, the claimant had adverse propfessional body findings against him, the defendant had been found guilty of a criminal offence and had committed perjury!

In both cases, the parties did not settle on the day. So whatever the theory, it is clear that emotionally it is difficult to settle with someone you just do not trust or believe. However, the example of Nelson Mandela should teach us that even in extreme circumstances, a deal can be done.

My view is that with careful preparation and an open mind, even negotiating with the devil can produce an acceptable solution.
Ultimately a settlement should be achieved if it is, on balance, just that bit better than the alternative. You do not even have to meet face to face.

So once again, it is good preparation that is essential to getting the best out of any mediation. Remember that over 80% of mediations do result in settlement.

Alan Langleben

For a superb book on this topic see Bargaining with the Devil – When to negotiate, when to fight by Professor Robert Mnookin of Harvard Law School.

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