(Don’t) Meet me halfway

Posted Tuesday, November 17th, 2015 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

There’s a hilarious scene in the movie Bad Santa in which the head of mall security, Gin (played by Bernie Mac) has discovered that the dipsomaniac Department Store Santa, Willie (played by Billy Bob Thornton), and his foul-mouthed Elf assistant, Marcus (played by Tony Cox), are actually con men who rob a different mall each year and have targeted his mall this Christmas. Rather than expose them, Gin demands a cut of this year’s take.  Their negotiation follows:

Marcus: How much?
Gin: Half.
Willie: No fucking way…
Marcus: Just back off, Will, I got this. I got this! Okay, 30%. That’s three of us. 30%, that’s fair.
Gin: Half.
Marcus: I meant 33%.
Gin: I meant half.
Marcus: And 1/3.
Gin: Half.
Marcus: 35%.
Gin: Half.
Marcus: 40%.
Gin: Half.
Marcus: 42%?
Gin: Half.
Marcus: Um… 45%.
Gin: [Thinks for a minute] Half.
Marcus: 48%?
Gin: [In British accent] Half.
Marcus: 49%?
Gin: Half.

The humor stems from Marcus’ inability to recognize each party’s different negotiation style. Marcus believes negotiation is starting with initial, unrealistic, demands and then meeting somewhere in the middle–what one might call the “meet me halfway” method of negotiation. Gin, however, simply starts with what he had determined is a reasonable negotiation position and refuses to move from that position. As Gin has all the leverage in this negotiation–if he exposes the con, Willie and Marcus get arrested and get nothing–his negotiation strategy ultimately prevails.

Though highly inefficient and rather illogical, most folks conceive negotiation as a “meet me halfway” process. It is inefficient because the initial negotiations are premised on each side bluffing the other, rather than convincing the other of the merit of his or her position. It is illogical because the “halfway” point can be manipulated by staking outrageous initial positions. The halfway point between a billion dollars and nothing is five hundred million dollars but my client’s equitable distribution case doesn’t become more valuable simply because I start with a ridiculous demand.

Because attorney’s fees can awarded to the prevailing party in a family court case, starting with a defensible demand and then remaining put until the other side gives one reason to move–either because they offer some bonus one could not achieve through litigation or demonstrate previously unconsidered flaws in one’s own position–is a smart negotiation strategy. However, it is not a commonly employed strategy.

When employed, the other side typically assumes one is bluffing and one is meet with entreaties to “meet halfway.” The other side can never be certain whether one has simply staked-out a reasonable position or is bluffing… and no one likes being an outbluffed sucker. When, in the past decade, I’ve had to try family court cases–or at least prepare for trial–it’s most often been because I was negotiating from a position of (what I believed was) a reasonable demand and the other side thought I was bluffing.

3 thoughts on (Don’t) Meet me halfway

  1. Decency and good manners require negotiators to make initial demands of more than they expect so the other side can save face and feel good about negotiating a settlement for less than the initial demand. All lawyers should read Herb Cohen’s “You Can Negotiate Anything.”

    Starting with a $5,000 demand, never budging, and getting it will cause the other lawyer to hate your guts forever. Start the same case with a $10,000 demand, settle for $6,000, and the other side will be impressed with your reasonableness and fairness.

    1. The issue of attorney’s fees alters what is typically the optimal negotiation strategy. Plus, if opposing counsel understands your initial offer is serious it makes future cases resolve more quickly.

      I would note that in Bad Santa Marcus eventually murders Gin.

    2. MJ Goodwin says:

      I think there is an art to negotiation. There is no hard and fast rule as to which way is preferable. I do think that one should know the hard limits before the negotiation begins, but there is nothing wrong with asking for more than the hard limit or with giving in places you had not anticipated. I think it’s part of the process. If I can make the other side believe that I want something, when in fact I really don’t care all that much about it, then I have an edge. Family Court is more about psychology and emotions than it is about facts. Timing is also important. If I perceive that the other side is in need of the last word, for example, I will structure the negotiation to allow for that. This has proven successful over 24 years.

      Bad Santa is my favorite Christmas movie and one of my all time overall favorites as well. I had not considered the negotiation aspect of the movie. I have often had chances to contemplate the realities of “Mrs. Santa’s Sister.” But that is a different blog.

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