Negotiating Against Yourself: From Congress to the Courtroom
by Dan Brecher on October 1, 2013
For many years, I have been a federal court mediator, a FINRA mediator and arbitrator and, as an attorney, a negotiator in many hundreds of successful matters. The improper use of the "I am not going to negotiate against myself" tactic I have seen employed in too many of these proceedings is now front and center in the current national debt debate.
There is nothing objectionable about that statement of position after having made a demand (seller) or offer (buyer) that is within reason, usually based upon a determinable range for market value. "Fair Market Value" has been described in law as "the price that a seller is willing to accept and a buyer is willing to pay in an arm's-length transaction."
I recently represented a lender in a court-ordered mediation with the borrower who
acknowledged owing more than $200,000, but communicated an initial offer of only $30,000 through the mediator. The mediator (in my view correctly) confirmed that communicating that offer showed that the defendant debtor was refusing to indicate the actual range in which it was willing to negotiate settlement and that these negotiations were doomed to fail because of posturing by the debtor. Despite the patent bad faith of the debtor’s initial offer, the debtor stated it was unwilling to bid against itself by increasing its initial, clearly bad faith, offer.
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