Point Lookout: a free weekly publication of Chaco Canyon Consulting
Volume 8, Issue 44;   October 29, 2008: Extrasensory Deception: Part II

Extrasensory Deception: Part II

by

In negotiating agreements, the partners who do the drafting have an ethical obligation not to exploit the advantages of the drafting role. Some drafters don't meet that standard.
A bristlecone pine in the Great Basin National Park

A bristlecone pine in the Great Basin National Park in Nevada. Bristlecone pines are the oldest living things on Earth. Although they thrive at timberline, where most trees cannot survive, they do also grow at lower altitudes. When they live at lower altitudes, they don't live quite so long. It almost seems as though they are in negotiation with Nature, exchanging longevity for ease of living conditions. Perhaps it is the harshness of the timberline environment that makes the wood of timberline bristlecones so resistant to the elements and to pests.

Tough negotiations can produce solid, long-lasting agreements. But when one party uses deception to forge an agreement that truly harms the other, the longevity of the other, and therefore the agreement, is threatened. Long-lived agreements must treat all parties fairly. Photo courtesy U.S. National Park Service.

When two parties negotiate a written agreement, one partner usually does the drafting. We'll let Donald be the drafter, and we'll call the Other partner Olivia. Here are some deceptive techniques available to drafters. See "Extrasensory Deception: Part I," Point Lookout for October 22, 2008, for other deceptive negotiation tactics.

The non-redraft redraft
Donald agrees to drop language cited by Olivia, but in redrafting, he inserts new language that has the same effect, albeit somewhat more artful. He then presents it as a serious attempt to address Olivia's concerns, and he might even say, "Shall we move on to the next section?"
Donald's behavior is a deception, intended to suggest that Olivia's concerns were addressed, when they were not. The more clever operators might even materially weaken Olivia's position.
The bonus
Donald agrees to add language Olivia requested, but he also inserts conditions that weren't requested, and which erode the effect of the requested language.
This deception is related to the Non-Redraft Redraft, but it applies to the requested addition of new language, rather than to the revision of existing language. It can be more subtle because the bonus changes might have been inserted elsewhere.
Unexpected revisions
When Donald returns with the redraft, he's made the changes that were discussed, but he's also made some unrelated changes that weren't discussed. During the walkthrough, he omits any mention of the unexpected revisions, or mentions them only in passing. He pressures Olivia so as to limit the time she has to contemplate their impact.
Unless Donald is a master of pressure, this tactic can be risky for him. If Olivia discovers what he has done, she'll probably cease trusting him, and that might lead her to review the entire document. To limit this risk, Donald might try the next tactic, Late Delivery.
Late delivery
When Donald sends Olivia the latest draft about 40 nanoseconds — or even an hour — before their next meeting, he might be trying to deprive her of any real opportunity to review it.When one negotiation partner
discovers a deception by
the other, Trust is threatened
A reasonable response to Late Delivery is "We have to reschedule." Olivia can say, "I just received it, and I need to review it," but that does open her to Donald's feigning offense or using some other pressure tactic. Sometimes it's more fun just to say, "I have to water my begonias."

Perhaps the most powerfully deceptive tactic for drafters is Seizing the Drafting Role. If negotiations begin with Olivia sending Donald a draft agreement, he can respond by returning the agreement without citing any objections, but re-written to his own satisfaction. He has thus seized the drafting role without Olivia's consent, and without explaining what he has done to the agreement. Olivia can point this out, but he surely already knows. Since this tactic is a strong indication that the negotiation will be difficult, Olivia might consider her time better spent watering her begonias. Go to top Top  Next issue: On Virtual Relationships  Next Issue

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