As a seasoned litigator, I’ve encountered a wide range of hardball tactics. In this article, I will share 5 common hard-bargaining tactics; and the skills needed to handle them. In so doing, I will draw from my 30 years’ of litigation experience and the insights garnered from negotiation expert Robert Mnookin, who taught me at Harvard Law School and as he cited in his book Beyond Winning: Negotiating to Create Value in Deals and Disputes.
1. Extreme positions at start
This popular hard-ball tactic involves making excessive and extreme demands initially, and then later dripping minor concessions over time. The goal is to scare you at the outset, while forcing you to make early concessions. The idea is that very little ground is conceded early, and causes you to come closer to their position. If this approach shows progress, then they begin the actual negotiation from a pre-orchestrated superior position. Sadly, decades of research have shown that this technique is rarely successful and rather prolongs negotiations unnecessarily. If you are observing this in action, a tip is to remain calm, don’t be intimidated, ignore unreasonable positions taken and clearly define your own range of possibilities.
2. Take-It-or-Leave-It Strategy
Another hard-ball tactic is claiming that a particular position is non-negotiable. This party will even claim that their position is so solid that they are prepared to lose at trial and pay costs, but will never agree to such terms of settlement. Another way to describe this is that such person is ‘willing to fall on their sword’ or will declare that ‘this is a hill that they are prepared to die on’. Voicing their position with such bravado, in their mind, causes you to think that they may just be that crazy and that you are better off settling for less now than be dragged into a lengthy and expensive litigation. A tip for the person faced with this tactic is to approach it scientifically. Break down the issues, the evidence, the witnesses, the expert reports and the possible range of outcomes. Then assign probabilities to the various outcomes. Then calculate the total cost of the litigation beginning after mediation has concluded including lawyer fees, expert fees, loss of employment income and inconvenience. Then do the same calculation for the other party. Then share these two pictures in mediation, pre-trial or case conference – the WATNA and BATNA (worse/best alternative to a negotiated agreement). Using an economic and statistical analysis may serve to break down the barrier between the parties and allow the neutral to use your analysis to prompt a more linear approach to resolving the issues.
3. One-sided Offers
In some cases, one party is more desperate to settle than the other and that party knows it. So they exploit that position of power. In such cases, a common hard-ball tactic is to force the other party to ‘make your best offer’ first – before disclosure is exchanged, before any concessions are made and before negotiations begin. That way, the more powerful party plays on the desperate party’s emotions and treats the opening offer process as a tool to extract up-front concessions before the process begins. This hard-ball tactic works when one party has made their vulnerability known. For example, a parent asking for permission to relocate with the children, a spouse eager to keep the matrimonial home, a party afraid of public embarrassment such as disclosure of infidelity, financial wrongdoing or criminal conduct, may grant the other party the upper hand which can then be exploited. A pre-emptive tip is to either keep this information private, discuss a strategy with your lawyer or mediator or cause a passage of time from the event so as to reduce its importance. Either way, ensure that any negotiations are even-handed, balanced and fair. Don’t enter a negotiation process that is slanted against you from the outset.
4. Personal Insults and Feather Ruffling
Some parties (and their lawyers) will use personal attacks aimed to exploit insecurities and disrupt your (or your lawyer’s) focus to achieve their goals. Although distasteful and unethical, these dirty tricks are played out every day in litigation. Parties will post on social media embarrassing information and photos. They will leak information to colleagues, family and friends meant to aggravate you. They will brainwash their children to distrust and blame you. Their lawyers will double down on these tactics and justify them. Their lawyers will send incessant emails and letters attempting to ‘paper’ false narratives and ramp up costs. Their lawyers will file complaints against the other lawyer with the Law Society claiming a breach of ethics. None of these actions have anything to do with the case; they are strictly aimed upsetting you, ruffling your feathers, distracting you and increasing your overall costs. The best tip is to ‘stick to your knitting’. When this occurs, take a break, get good advise from your lawyer or mediator and calmly assert that you will not tolerate such behaviour. By establishing this boundary, you demonstrate that these tactics have failed and you cause a return to a process of mediating each issue based on the evidence and the law.
5. Bluffing, Puffing, and Lying
Exaggerations, omissions and misrepresentations can mislead and unsettle you and the persons in authority in your case – judge, arbitrator, mediator or assessor. Good liars will embed their lies in facts that are known to be true, causing the listener to possibly accept the lie as true. The most effective tip to counteract this tactic is to create an inventory list of the bluffs, puffery, exaggerations and misrepresentations by category (eg. parenting, support, property, etc.) and then list the lie, the truth, the source of the truth (eg. witness, document, expert report, etc.) and the circumstantial evidence that calls the lie into question. Again, stay calm and respond scientifically. Such a forensic approach will mitigate your audience’s false conclusions.
In conclusion, being aware of these hard-bargaining tactics equips you to handle them effectively. As a divorce lawyer, mediator and arbitrator for 30 years, I have seen these games played many times. I often can even predict these tactics when I know who the lawyers are (sadly). As a neutral, my role is to ensure that the process remains fair, ethical and productive. By knowing, identifying and responding to these tactics and committing the parties and their lawyers to a fair process, the distractions will be removed so as to focus on the legal issues, weigh the evidence, account for the law and achieve equitable outcomes for the parties.
Have you encountered any other hard-bargaining strategies? Please share your experiences with me.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
Editorial note: This article was first published in June 2025. It is republished here for reference.
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