“Please find attached our clients’ offer for the above property. This is their best and final offer and they have asked for a decision today.”


A letter received out of the blue on a Friday afternoon on behalf of clients who were interested in purchasing a house. There had been no prior indication that an offer would be forthcoming. The house in question had only recently come on the market.


The response of the sellers was not positive. It felt like a gun to the head. Their immediate reaction was to instruct an equally robust response. But they knew, through conversation, that the clients in question were decent folk, under a bit of pressure. It was decided simply to say that a response would be forthcoming in due course. It was duly given on the Monday.


There are three interesting aspects to this. Firstly, looked at in the cold light of day, the letter may seem innocuous to some readers. But that was not how it was received in the heat of the moment.  The only thing that matters about communication of any message is how it is received: whatever I intend to say, if you take something different from it, what you take is what counts. This means that we need to know our audience, be aware of the context, think about the impact of the words we use and anticipate the possible reactions – whether apparently (to us) irrational or not.


Secondly, the language referred to above may be customary for property lawyers but is this how the clients would wish to be represented? There is much said these days about respectful dialogue (see the Commitment to Respectful Dialogue on the Collaborative Scotland website) and there is no reason at all why this should not apply to letters or statements on behalf of clients. Too often, one sees the escalation of a dispute or the creation of conflict through the use of unnecessarily inflammatory language. Just recently an adviser in a mediation was heard to say that he needed to use aggressive language to make the other party see sense. Ironically perhaps, the outcome was exactly the opposite. We only need to consider how we would feel if the boot was on the other foot….


Thirdly, and perhaps most importantly, it raises questions about negotiation strategy. There are times when an ultimatum will be necessary; if so, it may be helpful to explain why. “They have asked for a decision today because…..”. That at least gives a context. Helping others to understand what lies behind a statement which might otherwise be seen as peremptory may make all the difference.


To state that a proposal is the “best” and “last” may be appropriate if that is genuinely your position and you are happy that you will stick to it, whatever the response. However, it rarely is. This is an example of the usually false premise that to have a “bottom” or “top” line is a good negotiation strategy. There are two problems. One, it gives no room for movement even if new information you receive would suggest at least a marginal shift. (If you do move, your credibility as a negotiator is likely to be diminished now and for future engagements).  Usually, flexibility is preferable to taking a fixed position.


Further, it provides much less scope for the “dance” of negotiation, denying the other party any opportunity to make a counter proposal. It may seem efficient to cut to the chase but it takes two to tango, and most experience and much theory will suggest that you have to leave the other party some scope to come back and feel they also have had an opportunity to trade. Indeed, it is arguably disrespectful not to enable the other to engage in this way.


Good negotiation often involves a number of moves before people are satisfied that they have done their best and reached a conclusion with which they can live. If there is a clear understanding that both parties are content to go straight to “final” positions, that at least is a bilateral approach and, if handled with consistency, may work well. However, note that, to achieve this, clear communication will be required in advance to manage expectations.


These observations started in the context of a property sale, where of course the conventional setting of a closing date creates its own specialities. But take all of this into the constitutional arena. Knowing the audience, formulating statements in a way which gets a message across, careful use of language, avoiding bottom lines, giving the other party the respect to engage in the “dance”, having clear ground rules and behaving with dignity throughout. A tall order? Perhaps, but also a sign of maturity.


This blog post was first published in The Scotsman, 23/06/14. You can read the original version here.

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