Negotiating with difficult people.

• Author: Wade, John

INTRODUCTION

This paper will first suggest a working description of a "difficult person." Second, it will describe the outward behaviors of such persons. Third, this paper will set out five overlapping categories of the types of causes for "difficult persons." Finally, it will provide a toolbox of responses for each "type" of cause. This topic has a vast foundation in the following fields: medical, psychiatric, counseling, management, cultural, theological, and negotiation literature. (1)

DEFINITIONS

One possible description of a "difficult person" is an individual who has different beliefs and behaviors from yourself. For example, an individual who:

--talks more; talks less

--beats around the bush; gets straight to the point

--is indirect; is very direct

--focuses on detail; focuses on the big picture

--does not listen; listens patiently

--is very emotional; is intensely rational

--is disorganized; is highly organized

--gives priority to the individual; gives priority to the community

--favors top down decision-making: favors grass roots participation and consensus

Because of these differences, the "difficult person" can make you feel at unease. For example, these persons can make you feel as though your normal patterns of behavior are not successful; you have lost your identity and are a failure; you want to avoid or exclude that person; or, you want to ridicule that person.

An overlapping, but much narrower possible description of a "difficult person" is one who appears to others as behaving in ways that are detrimental to his own best interests and to the interests of his community. For example:

--sends long insulting emails

--uses unnecessarily inflammatory language

--arrives at meetings unprepared

--tries to ambush people with new information

--is totally focused on self-interest ("I need....") and is apparently unaware of needs or goals of others

--lies and exaggerates

--cannot identify what is important or a priority in their lives

--spends more time and money on the dispute than it is apparently worth

This narrower description will be used in this paper.

Like most attempted descriptions, this latter one is over-inclusive as it may catch many "difficult" dissenters such as Jesus of Nazareth, Ghandi, William Wilberforce, and Alexander Solzenitzyn. These deviants have been retrospectively re-categorized as heroes. At the time, these people were perceived to be a serious nuisance to their own short-term interests and to their dominant communities.

Lawyers have standard expressions to describe "difficult" clients, supporters, and lawyers, such as: "he is high maintenance"; "he is out of control"; "he is a maniac"; "this will be a long case"; "oh no, not him"; and, "this is a highly conflicted situation." Conversely, clients describe "difficult" lawyers as "uncaring," "too busy," "sharks," "the main problem in this case," "unprepared," "poor communicators," etc.

In my opinion, based on my experiences as a lawyer and mediator, approximately 30% of my clients initially appear to act contrary to their own interests and exhibit one or more of the above

behaviors. One famous study of lawyer-client conversations identified that the basic circular exchange is:

Client: "It's not fair...."; Lawyer: "Yes, but this is how the system works...."; Client: "Oh, but that's not fair...."; Lawyer: "Yes, but...." (2)

This conversation usually lasts for about 2 years. Is this "normal" and/or "difficult?"

Narrowing the Definition Twice

This paper is not about the "normal" difficulties associated with negotiation. The normal difficulties or hurdles of negotiation include duelling experts, miscommunication, the last gap, insult openings, outside tribes, etc. Nearly all negotiations are "difficult" in the sense that there is a loss of control for one or more parties.

Negotiation, admittedly, is a difficult process, as the etymology of the word indicates. Composed of the Latin roots neg (not) and otium (ease or leisure), the word "negotiate" came into the English language in the year 1599. Almost four hundred years later, ... "negotiation" is as fully ease- or leisure-denying as it was when the Romans conjoined the root words to fashion their "negotiare." (3) Thus, an easy negotiation is arguably a contradiction of terms. Perhaps easy negotiations should be relabelled "transactions"?

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This paper attempts to identify particular layers of challenges beyond, but inevitably overlapping with, the standard hurdles--namely those situations where a client or lawyer appears to be acting against his own self interest.

"Rational Stubbornness"

Also, this paper is not discussing another category of situations where people stonewall, delay, and refuse offers which are arguably in the market range. In this category, the stonewaller is not "irrational" or "stupid." Rather he has open or hidden "rational" reasons to stonewall. For example, the conflict gives him meaning to life and a "cause"; someone else (e.g., a friend, legal aid) is paying for the conflict/negotiations; he is hoping that a court will be a theatre of public vindication; or, any deal will be interpreted by supporters and tribes as a sell-out. These stonewallers sometimes hide rational reasons behind the unhelpful and ubiquitous smokescreen phrase of "it is a matter of principle." If these motivations become clear, one should probably refer such negotiations to an authority figure or judge. This "need for a judge" is discussed in detail elsewhere. (4)

Causes?

The causes of "being difficult" are complex. Are they perhaps so complex that they are beyond analysis? Most humans reject this black box theory, and develop conscious or sub-conscious frameworks or stereotypes in order to understand and respond to difficult people and difficult behavior. Books are written regularly with recycled and plagiarised wisdom on the three, five, seven, or twelve causes, habits, responses to, etc. God has provided a precedent for this pattern by issuing Ten Commandments and summarizing life guidance into two principles. I now do likewise, with somewhat less authority, by reducing an infinite number of causes of being difficult into a list of five or seven points.

Here are five overlapping causes of the actual or perceived irrationality of clients, tribal supporters, self, and other professionals.

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The article will comment briefly on these five categories, each of which is the subject of many libraries and megabytes. Why bother with all this? Identifying the correct cause of "being difficult" is important because a wrong diagnosis necessarily means wrong treatment.

HABIT AND CULTURE

Some people are very difficult because of habit--"This is the way I have always behaved"; and, some people are very difficult because of culture--"The French are very direct" (a.k.a. insulting); "Lawyers are detail-oriented people" (aka analytical; or "lose the forest for the trees"). Here are some more examples of challenging habits:

--Some lawyers regularly make insult claims, explore every rabbit hole, and then settle for far less at the door of the court.

--Clients talk endlessly about "justice" and "fairness" and cannot seem to understand "market price."

--Some lawyers have a habit of using inflammatory language (win; lose; right; entitlement). They forget to do a written risk analysis with their pumped-up clients until they are at the door of the court. (5)

What habits do you particularly observe from self, clients, or other lawyers that make things difficult?

Cultural Differences (6)

One working description of culture is the "patterns of beliefs and behaviors within a group of people." Differences in culture may lead to conflict. For instance, people of one culture tend to stereotype people of another culture. "They drive me crazy because ..."

* Americans are always in a hurry.

* Japanese never get to the point.

* Norwegians send juniors to negotiate.

* Australians are laid-back and disrespectful.

* Lawyers are too aggressive.

* Italians are so emotionally expressive that they are unable to make wise decisions.

* Men are emotionally unaware.

* Canadians are ....

* Etc.

The following two charts provide a glimpse of why negotiating across cultures produces crossed-wires and crossed-emotions.

Some Cultural Differences that Affect Conflict Expressing Strong Emotions * Strong feelings must be gotten out of the way first so negotiation can progress through calm, rational communication. Being objective and reasonable is associated with legitimacy. --versus-- * Progress must be made in negotiation before participants can let go of intense expressions of emotion. Strong feelings are associated with legitimacy of a concern. Trustworthiness of Mediator * Impartiality is important; therefore, someone who is a stranger to all parties is most likely to be trusted. --versus-- * Caring and involvement are important; therefore, someone familiar who is known and respected by all parties is most likely to be trusted. Site of...