08 Dec I Don’t Like Bullies
by Dan Dooley for Ex Juris ADR Centres
“I Don’t Like Bullies”
“Hard bargaining wastes valuable time” according to Katie Shonk in the December 6 Daily Blog of the Harvard Law School Program on Negotiation.
Referring to negotiations that followed the accidental on-set shooting of cinematographer Halyna Hutchins by actor Alec Baldwin in October 2021, Ms. Shonk described the counter-productive impact of “hard bargaining” and “not budging” by the Alliance of Motion Picture and Television Producers in negotiations with the International Alliance of Theatrical Stage Employees over working conditions, hours and budgets.
Ms. Shonk described as a “negotiation mistake” “refusing to engage in good-faith bargaining by exchanging counteroffers… one of many hard-bargaining tactics that rarely pays off” and which wasted months of negotiation that could have been used to build trust and rapport, discuss priorities and concerns and brainstorm possible package deals.
In my experience, the importance of building trust and rapport cannot be over-emphasized. Comments, particularly during the opening joint session, that will almost certainly be interpreted as bullying, condescending and/or attempted intimidation invariably compromise (sometimes beyond repair) prospects for a negotiated agreement. Disparaging other disputants or their representatives or describing in threatening tone and content an opposing disputant’s Best Alternative to a Negotiated Agreement often just stiffens the resolve of others to bargain equally “hard” when all concerned would be best served by disregarding attempted intimidation or condescension and concentrating on concluding a mutually-beneficial agreement.
No one likes a bully. No one wants to capitulate to one. Few want to negotiate with one. Condescension never creates trust.
Major League Baseball Players Association union lead negotiator Bruce Meyer, who was recently profiled by Evan Drelich in the November 28, 2021 edition of The Athletic, described his role in the current baseball labour negotiations as “passionate advocacy” and continued:
One feature I think of my personality – it’s always been there – is I don’t like bullies. I don’t like being bullied. I don’t like being condescended to. But it’s not just about me. It’s about the people I represent, the players I represent. If I feel like they’re being bullied or condescended to, it rubs me the wrong way. I don’t react well to that.
Few do.
I have seen counsel refer in an aggressive manner during joint session to the cost or other adverse consequences of unsuccessful litigation. Of course, potential adverse consequences are relevant to BATNA. But aggressive or condescending reference to such during joint session hardly promotes trust and/or rapport. Tone and content that comes off as threatening, condescending and perhaps even bullying is likely to simply stiffen the resolve of any negotiation participants who don’t immediately terminate negotiations.
Retired Ontario Superior Court Justice Elizabeth Quinlan, a member of Ex Juris’ mediation panel, comments that attempted bullying, condescension and what in other contexts might be acceptable “hard bargaining” is particularly counter-productive in family or estate law negotiations where emotions are often running high as the mediation begins and perceived slights could scupper meaningful negotiations before they even begin.
Surely every legal representative will have explained to their respective clients the cost and other adverse consequences of unsuccessful litigation. Disputants and their respective representatives do not need their BATNA emphasized by another negotiation participant adopting the posture of throwing down the gauntlet.
The mediator will attempt to reframe counter-productive communications. But hard feelings and mistrust are difficult to overcome. Prospects for building rapport will likely have been replaced by a festering resentment that becomes an insurmountable barrier to resolution.