A judge once told me that a successful settlement occurs when the plaintiff thinks he did not get enough and the defendant that he gave away too much. This viewpoint envisions both sides leaving negotiation with a measure of defeat. Some years ago when I was a trial lawyer, we were on the verge of choosing a jury when the judge called for a settlement conference, ordering both sides to come to his chambers with authority to settle. He asked us to write a number on a slip of paper and hand it to him. I wrote down the lowest amount I could accept and my opponent the highest number his client would pay. The judge picked up one slip, then the other, and smiled. Holding out both slips, he showed us that they had the same number. Sounds like a happy ending, right? But the case was not over yet because once my opponent realized that I would take his number, he tried to get out of it. It was not acceptable to pay any amount that would satisfy us, even though moments before he and his client would have happily settled at that figure.
Although the aim of negotiation is to arrive at an agreement, many approach it as a win/lose proposition. The language people use to describe negotiations is often black and white. It’s either “I left money on the table” or “I gave away the store.” That is usually the case when the only currency considered is money.
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