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Volume VII, Number 1 • July 2013 • Archive of Past Issues
An E-Publication of the Los Angeles County Bar Association
Written by Linda B. Bulmash

This Month's Topic:
How to Avoid Destructive Competition
(or How to Change This Negative Election Year Cycle!)

We have all faced a counterpart who is bent on following a path of destruction, take no prisoners approach to negotiation. We respond in kind and the dispute escalates, absorbing excessive amounts of time and money into the black vortex of battle.

A Unique Way to Approach a Highly Competitive Counterpart:
There are other ways to deal with this highly competitive escalating approach: “Co-opetition” (for more on this strategy, see Adam Brandenburger and Barry Nalebuff’s book, Co-opetition, Currency Doubleday, 1997) wherein the parties agree to some collaborative/cooperative ground rules for the competition that de-escalates the negative elements and “Punitive Enforcement Mechanisms” wherein highly punitive sanctions and penalties are used to motivate negotiators on both sides of the table to abide by the terms of the agreement.

Last year's hotly contested Senate seat in Massachusetts between one-term incumbent Republican Scott Brown and Democrat Elizabeth Warren is an example. Each had raised many millions and, yet, third-party “PACS” were outspending both of them on negative ads. Wisely both candidates decided to distance themselves from these super PACs and entered into a co-opetition agreement. On January 23, Brown and Warren signed the so-called “People’s Pledge”, hoping to end the influence of outside spending. 

Adam Sorensen in Time magazine reports that both Brown and Warren agreed to ask these outside advocacy groups to stop airing both positive and negative ads about the candidates. Although they had little control over these groups, they also decided to have a punitive enforcement mechanism: they promised to “donate 50% of the value of each media purchase on its behalf to a charity of its opponent’s choosing. An excess of ads in one side’s favor could bankrupt his or her campaign.”

The outcome: some special interest groups actually agreed to abide by the pledge to prevent bankrupting their own candidate.

The Take Away:  Get creative when the other side tries the all out war game that does not benefit the parties.  Think of developing a "co-opetition" game plan that will replace the present tenor.  Some counsel have found that inviting their counterpart for dinner and breaking bread outside the courtroom or legal atmosphere can change the energy of the relationship.

How would you open the door for change? 

* "To Avoid Destructive Competition, Take the Pledge", Program on Negotiation Newsletter, Harvard Law School, March 12, 2012.  

LACBA member Linda B. Bulmash, Esq., writes the Negotiation Tips. You can contact her at:
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