Dealing with the Untrustworthy – Part 2

NOTES ON NEGOTIATIONS
By Marty Latz, Latz Negotiation Institute

“We had a deal. Then he tried to slip something in that we had not even discussed. It was significant, too. Not a huge change. But not a minor issue, either. And it wasn’t inadvertent or a mistake. He intentionally did it. Frustrating, to say the least. It raised an issue of credibility and trust.”

Should you walk? It depends.

First, it depends on whether the deal primarily involves a one-shot zero-sum transaction with relatively few issues and no future relationship between the parties. If so, you might decide it’s worth it to close. Otherwise, especially if you will have to work with your counterpart to implement the deal, seriously consider walking away.

Second, and related to the first, evaluate your leverage. Your counterpart’s sleazy tactic (we call these “nibblers” in the negotiation world) changed the value of your deal with them – and made it worse. So re-evaluate it now relative to your Plan B, your alternative to doing that deal.  If your Plan B now appears better than this deal, walk.

This evaluation should also include your personal attitude toward risk and conflict. Your counterpart’s trust-raising tactic increases the risk and possible conflicts and problems involved in the deal and with this counterpart.

Roger Fisher, co-author of the bestseller Getting to Yes: Negotiating Agreement Without Giving In, once said “trust is a matter of risk analysis.” He’s right. The more you trust, the more you risk. The less you trust, the less you risk.

It just became riskier for you to trust your counterpart. The deal also became riskier. Folks like this will be less reliable and trustworthy on all fronts.

If you have spent your life building a company and want to sell it and retire, you likely will not accept a handshake deal with a stranger. Way too risky.

And while you can try to legally nail down in writing as many contingencies as you can, it’s tough to completely eliminate the trust factor in any deal. It’s especially difficult if the deal involves a future relationship between the parties.

Manage the risk.

So what should you do if you decide to keep the deal? At the least, request an equivalent or greater concession in return. Don’t just give in. If you do, they’ll nibble more. After all, it worked. Why not keep on nibbling?

In addition, consider these strategies. I also recommend these if you find your counterpart untrustworthy due to other factors (like your research into their reputation, they made material misrepresentations in the negotiation, they used other sleazy tactics, etc.).

  • Independently confirm all statements that may provide your counterpart with leverage or power, especially if they involve the existence of an alternative deal.
  • Discount the relevance of statements that cannot be confirmed.
  • Document and then confirm in writing the party’s commitments.
  • Consider recording the negotiation.
  • Aggressively explore your potential alternatives (Plan Bs).
  • Be especially wary of vague and ambiguous statements and commitments.
  • Understand that such negotiations take more time and effort than others and recognize this cost in doing business with this person.
  • Pay attention to the details and don’t leave ambiguous issues unresolved.
  • Consider bringing in an independent third party to help.
  • Specifically define what constitutes a breach.
  • Provide a fair and efficient mechanism to ensure commitments get satisfied or to resolve disputes that may arise from a potential breach. (We use escrow agents in some transactions for this very purpose. It’s too risky to trust the other side will just comply based on our agreement – so escrow agents manage it.)

Of course, don’t lower yourself to their level. Your reputation is too important to risk.

Latz’s Lesson:  Sometimes we have to deal with untrustworthy individuals. Protect yourself.

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Marty Latz will be presenting again this year at the ICLEF Conference Facility!
December 1 – Gain the Edge! Negotiating to Get What you Want, 6 CLE / 6 CME / 1 E

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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