A good deal of my law practice, and electrical contracting work, involves negotiation. Do you, as I do, observe how people negotiate disputes? Some common negotiation techniques work, and some backfire. Here are tips to consider when trying to resolve a dispute.
These are not so much rules as they are approaches—or better yet, attitudes. My top two are: 1) Be more prepared than the party you are dealing with, and have backup documentation available, such as specifications or field records; and 2) Be patient. Anger and words expressing frustration rarely, if ever, promote agreement.
Don’t do this
Avoid saying “I agree with you,” regardless of the topic. That phrase just makes the other side more certain it is right.
Instead, rephrase the statement and make it your own. For example, the other party says your project managers were replaced frequently, causing disruption and delays to your work. You answer: “Change in project managers during a lengthy job is not unusual, and on this project, we made sure we always had knowledgeable and experienced project managers on the job. Delay or disruption was not caused by them.”
Do not say “You are wrong.” This sounds aggressive and usually makes the other side clam up and get defensive. Instead, show the error by pointing to something definitive, such as a specification section or email.
Do not let an insult go unanswered. Respond with, “We need to avoid that kind of talk.” By demanding courtesy, you come across as reasonable and in control.
If confronted with an argument or fact that catches you by surprise, don’t flounder with an unprepared reply. Say instead, “That is something we’ll have to look into.”
If the issues are not resolved at the meeting, set a date and time for a follow-up.
Keep in mind the old adage, “The one who speaks first and longest loses.”
It can be advantageous to spread your team around the meeting room. If you get there early, it is easy to take seats around the table and not sit all together. If you enter with the other side’s team, try to sit among them, even if it means some of your team are behind the other side at the table. Avoid having two sides facing off across the table to promote a calmer, more congenial approach, rather than a confrontational attitude.
If the other party uses the line, “We’ll have to look into that and get back to you,” get a commitment of when that will occur.
Where there is a recurring problem (e.g., late drawings, multiple design revisions, interferences), get assurance about how the problem will be handled if it arises again. Tell the other party, “We need to get this situation under control.”
Identify who the decision-maker is and who may be a barrier to agreement. Focus your attention on the decision-maker, but don’t ignore the barrier. The decision-maker may consider that obstinate person to be an important advisor. Even if you can’t bring that person to your point of view, you should at least neutralize them.
Lack of “written notice” of a dispute tends to be the first line of defense for owners and GCs. If you have not strictly followed the contract on “notice,” show that the other side was aware of the problem because the issue was raised at job meetings, in field memos or on the job site. “As we have discussed many times” is a good intro to explaining the other side had sufficient notice.
Being assertive often includes repeating phrases, such as “It’s not in the specifications” or “That’s our best estimate for the change.” For schedule problems, the other side may say, “There are other areas where you can work (or could have worked).” Your response should be: “We need to avoid changing the planned sequence of work, as shifting crews and doing work piecemeal is counterproductive.”
If a member of your team has intimate knowledge of the issues and job, but is not a good public speaker or angers easily, bring them to the meeting with instructions not to speak unless you specifically direct them to. Their presence alone is often enough to dissuade the other side from inventing facts.
No matter how friendly the other side appears to be, never let your guard down. Keep an eye on the results you want and avoid any acknowledgment that your team is partially responsible for the problem at hand.
Meet the other side’s general arguments with specifics; meet the other side’s specifics with your general argument.
If an agreement—even partial—is reached, write the terms down and have everyone initial and date the note. I have seen the technique where an obvious and intentional error is made in writing down the agreement, such as marking the wrong month or year. Make sure this error is caught and have the other party make, or initial, the correction. Later, they will not be able to say they did not fully study the written note.