Change the playbook and come out a winner
This story is for you if:
• You have made a big mistake in a negotiation and you need a way to recover;
• Your efforts at settlement have fallen on deaf ears;
• You have stepped in a negotiation minefield and you need to find a way to get back on track.
Periodically we find ourselves with a good case that will no doubt settle for serious money. In an effort to maximize the result, we come up with a negotiation strategy that on the surface looks like the perfect approach to turning a good case into a great outcome. We might have used the particular strategy successfully on another matter, so we’re convinced that this is the time to dust off the same page from the old negotiation playbook. Unfortunately, this time the effort backfires and the other side walks off the playing field.
Consider the case of the great Pittsburgh Steelers’ running back Franco Harris who, at the end of his illustrious career, was very close to breaking Jim Brown’s all time rushing record. Breaking this particular record for a football player was as big as breaking Babe Ruth’s home run record. With this in mind, and recognizing the Steelers wanted to bring the rushing record to the city of Pittsburgh, Franco’s agent began the negotiation with Art Rooney, the owner of the Steelers.
Someone had to start the negotiation, so Rooney reminded the agent that Franco’s knees were shot after multiple knee surgeries, but that the Steelers recognized his value to the community and the franchise. Rooney proposed to give Franco the same contract he had the year before, despite the fact that everyone was aware of his physical limitations. The Steelers wanted to re-sign him for one final season with the thought that their powerful front four linemen would do whatever was in their power to make certain that he broke the record, even if he hobbled through only a few games in the season.
Unfortunately, his agent felt that he should be rewarded and asked for a significant raise with a guarantee. In order to placate the public and the media, the Steelers accepted the raise and guarantee despite their obvious knowledge that Franco would only play for a few games before his knees gave out. Failing to recognize that the Steelers’ offer was fair and reasonable, Franco’s agent demanded a second year guaranteed at an increase in salary. This came as a shock to the Steelers, who went out of their way to be generous with their star running back. Not willing to back down, the agent insisted on the second year guarantee and threatened to go to the media if the Steelers didn’t re-sign him under the agent’s proposed terms. Feeling rebuffed, the Steelers had had enough and dismissed the agent from their offices, indicating that Franco would never play another game for the Pittsburgh Steelers. History has confirmed that Franco never did play for the Steelers after that negotiation meltdown, but he was able to get a much more modest non-guaranteed contract with an expansion team, the Seattle Seahawks. Unfortunately he was not physically able to play more than a few games and failed to break Jim Brown’s record. A mistake made in this negotiation was when Franco’s agent tried to one-up the Steelers in a way that backfired and prevented his client from achieving his life’s dream.
This type of minefield could have easily been avoided had Franco’s agent acknowledged the favorable terms presented by the Steelers and not insisted on pressing for a deal that took advantage of a situation in which a deal was presented that was way beyond what any reasonable person would find as fair to his client, particularly in light of his physical limitations.
Here is what can be done when a mistake is made in a negotiation that results in an impasse:
• Avoid going to the media to punish your adversary.
• Acknowledge directly to your adversary that the negotiation got heated and that you made a move that you regret.
• Take a positive step such as showing recognition of your adversary’s higher status to get your talks back on track.
• Don’t ignore your mistake or you will deepen your adversary’s resentment.
• Utilize the mediator to keep the other party from walking out in order to bring the talks back to a productive dialogue.
• Recognize that successful strategies used in one case may not work in all cases – change the playbook if necessary.
• Apologize for the misstep and own up.
• Be reasonable.
Jeffrey Krivis began his mediation practice in 1989, when lawyer-mediators in Southern California were rare, and litigators had to look outside the state for experienced practitioners. Now, years later and having resolved thousands of disputes — including wage and hour and consumer class actions, entertainment, mass tort, employment, business, complex insurance, product liability and wrongful death matters — Krivis is recognized not only as a pioneer in the field, but also as one of the most respected neutrals in the state.http://www.jeffreykrivis.com
2023 by the author.
For reprint permission, contact the publisher: www.plaintiffmagazine.com