What is bad faith negotiations
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On occasion, mediations stumble from the outset or otherwise take considerable time to get into serious negotiations. We've all been there. Questions like "why are we here?", "we've been at this for over an hour and we aren't getting any closer" or simply "we're leaving" are frustrating ways to begin and conduct a mediation.
Often, this is the result of somewhat hard-nosed testing of an opponent's resolve or willingness to stay the course during mediation. However, it may also be the result of "bad faith negotiation tactics".
So how does one spot them? Let's take a look at both the tactics and the "tacticians".
Recall that the end product of mediation is a contract - one party agrees to do something in exchange for the act of the opponents' doing something in return. Certainly, as lawyers there are ethical and legal consequences that flow from knowingly making false statements in the formation of a contract, and these constraints apply to negotiations.
But what about bargaining in bad faith? As Katie Shonk stated in her article How To Negotiate In Good Faith, (Harvard PON, March 19, 2018), bargaining in bad faith is evidenced by one who engages in mediation or other bargaining with no desire to actually reach an agreement. As "false negotiators", they know going in that their BATNA ("best alternative to negotiated agreement") is better than negotiating an agreement, but participate in negotiations for reasons other than coming to an agreement.
In the litigation context, false negotiation tactics are designed to extract the greatest amount of information while having no intention of entering into a negotiated agreement. Often times during negotiations, the parties make calculated decisions about how much and what information to reveal. What if a significant piece of information is revealed that only elicits a minor concession from the other side? Certainly, the mediator will have a better sense of the temperature in both rooms, but distinguishing "hard nosed" negotiation tactics from those in bad faith is key.
Often, this is the result of somewhat hard-nosed testing of an opponent's resolve or willingness to stay the course during mediation. However, it may also be the result of "bad faith negotiation tactics".
So how does one spot them? Let's take a look at both the tactics and the "tacticians".
Recall that the end product of mediation is a contract - one party agrees to do something in exchange for the act of the opponents' doing something in return. Certainly, as lawyers there are ethical and legal consequences that flow from knowingly making false statements in the formation of a contract, and these constraints apply to negotiations.
But what about bargaining in bad faith? As Katie Shonk stated in her article How To Negotiate In Good Faith, (Harvard PON, March 19, 2018), bargaining in bad faith is evidenced by one who engages in mediation or other bargaining with no desire to actually reach an agreement. As "false negotiators", they know going in that their BATNA ("best alternative to negotiated agreement") is better than negotiating an agreement, but participate in negotiations for reasons other than coming to an agreement.
In the litigation context, false negotiation tactics are designed to extract the greatest amount of information while having no intention of entering into a negotiated agreement. Often times during negotiations, the parties make calculated decisions about how much and what information to reveal. What if a significant piece of information is revealed that only elicits a minor concession from the other side? Certainly, the mediator will have a better sense of the temperature in both rooms, but distinguishing "hard nosed" negotiation tactics from those in bad faith is key.
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