Never Say “Deal-Breaker” in Negotiations

There are certain words that you should simply avoid, whether writing or speaking. (And no, I’m not referring to profanity.)

When you are negotiating, never utter the phrase, “deal-breaker.” It doesn’t help you get what your client needs; in fact it makes your job much more difficult.

Lawyers negotiate all the time, and most think they are good at it. Most are wrong.

The first problem is that a typical lawyer aspires to be thought of as badass. I blame television for that. But I digress.

Not Strong. Stupid.

One way lawyers strive to be badass in negotiations is by trying to be “strong” on particular issues that they feel they need to “win.” So, they’ll describe why they need a particular part of the agreement to be X rather than Y. Then they’ll say, “We can’t accept what you’re asking for. It must be X, not Y. This is a deal-breaker.”

This is a very stupid thing to say.

You may be thinking, “Hey, that’s a good way to stake out a position on something I’ve got to have. Then the other side knows I have to have it and we can move on to the next thing.”

It’s a perspective that makes logical sense, but good negotiating relies on much more than mere logic. The human element is at least as important. That’s a person you are talking to, who has an emotional stake in his job, as well as a duty to his client.

When you tell your counterpart, “that’s a deal-breaker,” you insult both him personally and his client. First, you insult your counterpart by making it clear that you expect him to simply concede the point to you (because you are badass, and he isn’t). You also strongly imply that your counterpart’s client doesn’t have as much skin in this game as your client does and lacks the backbone to simply walk away without a deal.  Also, if you are emotionally invested in your job, and this negotiation, why would you say something that suggests that you think your counterpart isn’t?

Before you sit down to negotiate, you need to work out, based on the circumstances, what it is you must get. When you start to negotiate, save those “must-haves” for the middle of the negotiations. That way, you’ll have shown you are serious about making a deal, and will have already advanced toward that goal.

Not Chess. Not Poker, either.

You can address “must haves” in a number of ways. You can pretend that you have more wiggle room than you have. That’s tricky. You can ask for more than what you must have, then drop back. That’s a bit less tricky. Or, you can just tell the truth, and tell your counterpart specifically why you can’t move on that term, then say, “So, I’d really love to give you what you’re asking for, but I just can’t. My client has to have X. Let’s find something else I can give you to try to balance that out.” Not tricky, and surprisingly effective.

Negotiating isn’t Chess, where all the pieces are on the board, and there are no secrets (or secret agendas) and the player with more skill wins. And while Poker has a big human element, it’s a poor analogy too, because negotiations are not efforts to win everything and wipe out your opponent.

You are looking for a jointly beneficial solution. And keep in mind that your counterpart wants to be badass, too.

Subscribe

Get Lawyerist in Your Inbox, Daily

Current Articles
Current Lab Discussions
  • Great thoughts. Having been in numerous negotiations and mediations (both as a mediator and a party), “deal breaker” language does not get anywhere and is likely to only stall the process.

  • shg

    The post is useful for putting some flesh on the bones of negotiations, a subject that isn’t given nearly as much thought as it should. That said, sometimes saying “deal breaker” is exactly what’s needed. It’s just another tool, to be used when appropriate.

  • “I have no room to move, can we figure out a workaround” means about the same thing as “deal-breaker” but it is far more respectful of the dignity of the counterparty, which dignity is usually worth respecting. Of course, some things are more important than a successful deal or human dignity. In fact, loudly rejecting a deal – obnoxiously, even – can be a righteous and client-protecting act.

    If counterparty suggests that you fix prices horizontally in your lines of trade as a way of making a deal work, you better not respect her dignity. I’d suggest banging your waterglass on the table, screaming foul obscenities a couple of dozen times and walking out. I’d even suggest walking up to a wipeboard and writing out “&&&&& NO!” and taking a picture of your handwriting with your smartphone, as you reiterate the obscenities for the benefit of the visually impaired. Congrats: you may have just deal-broken your client out of a federal antitrust investigation and prosecution. Sounds childish but if counterparty is wearing a wire or is unknowingly bugged by DOJ or other investigators like the SEC, it’s actually a mark of attorney professionalism to break that deal and break it LOUD and UGLY.

  • Jack Sorokin

    Statements like “this is a deal breaker” without more explanation are inherently nonsense. The statement simply prompts the question: “Why is this a deal breaker for your client?”. If the attorney (or the client) can’t answer that question with a coherent explanation of their concerns, then there really is no negotiation underway, just posturing. If an explanation can be provided, then the other party will know why the point is a deal breaker and have a chance to respond. Ultimately, the point may be a deal breaker on both sides because neither can move further; but at least they’ll both know why. If the attorney refuses to provide an explanation and this is intended to be a long term relationship, then you might want to point out to your client what type of person they’re dealing with, and ask if they really want to do a deal with this type of person. After all, once the contract is signed, they may have to do business together for an extended period of time.