The following is excerpted and edited by David Swedelson from an article prepared by Jan Frankel Schau Mediator/Arbitrator/Attorney. Jan was an associate at SwedelsonGottlieb several years ago.
How many times have you been in a meeting with the board and a homeowner regarding the owner’s violation of the rules, CC&Rs or addressing damage they have caused to the common area? Many, I bet. And how many times have you cringed because neither the board nor the owner could get to closure on a deal, a settlement of the dispute. Everyone danced around the issues, but no one knew how to close a deal. Many people educated in negotiation tactics or skills have some tools they use to make a deal. Jan Schau analogizes to the TV show, “Pawn Stars.”
She says that she hesitates to admit it, but she has learned a thing or two about negotiation from the TV show, “Pawn Stars”. She goes on to state that in this show (which I myself have enjoyed viewing), the owners of a Las Vegas Pawn Shop negotiate face to face to purchase used and unwanted “treasures” that have an unknown or uncertain value. Invariably, the “final offer” is accompanied by a smile, an extended hand and an expectation that the seller will accept that offer, even though it doesn’t meet his last demand. The owners of the pawn shop are adept at making every seller feel great about selling their junk/treasures and getting a great deal in exchange.
Here’s how it works in the context of a board and owner at a community association:
Board member to Owner: All right, we can let you keep the hard surface flooring if you agree to area rugs and padding and a recorded covenant running with the land. Then, extending his/her hand and smiling, the board member asks the owner: “Do we have a deal?”
In most instances, the owner will reflexively grasp the extended hand, and then, out of a sense of honor, be reluctant to back away from the symbolic agreement. It is a human response and in American culture, it signifies an agreement or bond which in most instances is not easily broken.
Psychologically, once a handshake has been made, an agreement has been reached, even before the disputing parties have responded orally to the offer that’s been made.
The next time you’ve reached the end of the line with your negotiations, extend your hand while extending your final offer, as though it’s already been accepted. It just might work.
And Jan, being a mediator, suggests doing this in a mediation. Ask the mediator to bring the parties together with the other side of the dispute and extend your hand while extending your final offer, as though it’s already been accepted. You may find this technique very rewarding!
Have questions regarding mediation? Jan Schau can be reached via email: email@example.com
David C. Swedelson can be reached via email:firstname.lastname@example.org