So many divorcing people pin so much hope on mediation and settlement. While a fair negotiated settlement is obviously desirable, negotiation is only as valuable as it is effective. With that in mind, read this and understand better when negotiation is worthwhile and when it’s just a waste of time and money.
By Lee Rosen
Every one of us has had a moment when we realized all the time we spent in negotiations was wasted.
In retrospect, it should have been clear at the time. “There was never going to be an agreement,” we say to ourselves. “That person was impossible.”
“Know when to hold ‘em, know when to fold ‘em, know when to walk away, and know when to run.”
That’s from Kenny Rogers’ “The Gambler.” Go watch the video. It’s awesome.
How do country musicians know so much? I don’t even like country music, but the songs are filled with lessons.
But they aren’t the only source of wisdom.
“You can’t negotiate with the ocean”
That nugget of wisdom came from Ned, the Technical Director at Rosen Institute.
Ned and I have worked together for years. It’s shocking how many profound things he says. I suspect he borrows them, but what do I know? I don’t Google his pronouncements to find out if they’re original. That would destroy the magic.
I’ve spent my adult life surrounded by moderately weird guys making these kinds of statements. Ned was preceded by James. James’ comments were equally profound, but weirder and more ominous. He was fond of writing them down and saving them in a sealed envelope. Strange, but endlessly fascinating.
Back to the ocean . . .
Ned’s wisdom came in reply to my complaints about my hotel room’s proximity to the ocean in Unawatuna, Sri Lanka.
The hotel room was ten meters from the water. On stormy days, the water rushed right up to our bedroom wall. The roar of the ocean was loud, endless, and sometimes threatening.
In fact, that hotel sits in the exact spot a tsunami once struck. Graves line the roads in every direction. The number of bodies so overwhelmed the country that the government directed survivors to bury the dead in any available spot on public land. They ran out of lumber for coffins. The graves are a constant reminder of the day death struck the small country.
Of course, the immense power of the ocean is another reminder. A quick swim teaches Ned’s lesson. Before you know it, you’re spinning upside down and brushing against the shallow corals. You can’t negotiate with the ocean.
It’s pointless to negotiate with an incredibly powerful, persistent force that doesn’t care what you think. The ocean doesn’t care. The tide goes in and out, the waves rise and fall, day after day. Sometimes you find yourself listening for a pause, a second of silence, but the ocean doesn’t care. It’s going to keeping doing what it does.
But that doesn’t always stop us
In our roles, we interact with clients, opposing parties, and opposing counsels with whom negotiation is pointless. We try to be reasonable, but negotiating with these people is like negotiating with the ocean.
These “oceans” refuse to compromise–they’ll never come to agreement–for a variety of reasons.
Some use negotiation as informal discovery. They listen to your offer to learn how you’ve prepared your case.
Some use negotiation to distract you from preparing. They give you hope that settlement is near so you’ll walk into the courtroom unprepared.
Some use negotiation to throw you off your game. They keep you in a courthouse anteroom, talking and needling you until seconds before the trial starts.
Some negotiate because they can bill more hours to their clients.
These folks will never settle. Sometimes you’ll see it in action when you acquiesce to their terms and they ask for even more. Mostly, you’ll realize, often too late, they’re just jerking you around.
While it may be tempting to believe that we can convince these people to become rational, that hope is futile. Like the ocean, they will never buy our argument, see it our way, or accept our proposal. We waste our time negotiating with these people.
The sooner we accept that, the better.
That doesn’t mean we give up
Just because we can’t negotiate with certain people doesn’t mean we can’t make progress. We can still attack the problem. Negotiation isn’t the only solution.
Sometimes negotiation helps us acquire more and better resources to bolster our position. Sometimes it prepares us for the harsh environment of whatever proceeding is about to get involved in.
Sometimes negotiation helps us find better alternatives. Sometimes it teaches us that we don’t really want whatever we were seeking.
I’ve watched people try to negotiate with the ocean. They take small steps, wade into the conflict, try to make adjustments, and eventually get tired. They try and try and try. They weaken with each attempt.
The ocean wins, but it’s not always clear that’s what’s going to happen. We might see small measures of progress (and get excited!), but we fail to see the larger situation.
At some point, when you negotiate with the ocean, you lose.
Sometimes it happens suddenly, like when you’re knocked over by a wave.
Sometimes it’s subtle, like when you’re lulled to sleep on a raft and gently pulled far from the shore.
Sometimes it’s violent and dramatic, like when the tide sweeps you off your feet, pulls you under, and decides you’re a keeper.
You can’t negotiate with the ocean. It’s not going to end well for you and you’re going to lose. When we attempt to negotiate with the ocean, we walk away with less time, energy, resilience, and money.
Learn when to walk away
Knowing when to negotiate and when to walk away takes time, reflection, and skill. You’ll get better at it as you reflect on your experiences.
Note the frustrations you experience as you negotiate with different types of people in different types of matters. Train your brain to classify, categorize, recognize patterns, and get smarter.
There’s tremendous value in learning the subtle art of knowing when and where to invest your time. Knowing when to walk away will result in significant savings over the long haul. Those savings can be used to advance your clients’ causes. Plus, your bank balance will increase as you gain these insights.
Kenny Rogers wraps up his song with “You never count your money when you’re sittin’ at the table. There’ll be time enough for countin’ when the dealing’s done.”
Learning when to skip negotiations will give you more to count.