Perhaps because I have two teenagers, I find myself thinking about how to motivate people who generally find my suggestions stupid or old-fashioned. If my ideas are going to be received as uncool, perhaps I should tell my kids the opposite of what I really think. As a mediator, I face this situation less often, because people generally come at least partially receptive to what I am offering. Reverse psychology can still be employed more often than you might expect, however. It is not only teenagers who resist prescriptions that others think are good for them. There must be an innate human compulsion to do the opposite of what we are told, going back to the all-consuming desire Adam and Eve had to eat the one fruit they were expressly forbidden to eat.
In settlement negotiations, I observe this human perverseness in a number of situations. At the outset, there is often resistance to the very idea of settlement. People walk into a mediation firmly convinced of the rightness of their positions, very attached to their claims, and reluctant to give them up. To counter these feelings, I sometimes tell them that if they really think they would be better off not settling their lawsuit, then by all means they should not settle. When this tactic works, it probably does so because it makes people less likely to view the mediator as someone who is trying to make them do something they do not want to do. People need to come to the conclusion themselves that they might actually be better off by accepting a settlement rather than taking a case to trial.
There is also a tendency during the negotiation phase of a mediation, to de-value any offer the other side has made. For example, if you are negotiating two or more issues in a mediation, you might be tempted to give in on an issue you don’t care as much about, in the hope of speeding the process along. But that may cause the other side to under-value your concession, and press even harder for compromise on the issue you do care about. An obvious way to handle that situation is to show some reluctance to give in even on points that are not important to you. These are your bargaining chips, and when you hesitate before giving them away, you may be able to get a better deal on the issues that actually matter.
Or let’s say the parties to a lawsuit are engaged in a negotiation over the scope of production of documents or electronic data. Perhaps there is one source of records that would be troublesome to produce and might reveal information that could be damaging to the producing party, while another source would be easy to produce while yielding nothing but wasted hours of document review for the demanding party. Might it not be in the producing party’s interest to show more hesitation in producing the second set of materials? People are always most interested in discovering that which the other side is most interested in hiding. Everyone knows that going into a meet and confer session over discovery, but everyone should also know that the other side may be engaged in bluffing or outright deception. We may need to remember that the briar patch is exactly where Brer Rabbit wants to go.
Groucho Marx said that he would never want to join a club that would accept him as a member. In negotiations as in life, people prize what is most difficult to obtain, and denigrate what is too easy. Being aware of this tendency can help parties get a better result.