Unfair Surprise:

When the party who creates the contract includes a term in the contract without the other parties knowledge and is not within the other parties expectations  legalmatch.com

Being caught off Guard

To me, it means asking questions and expecting the exact correct answer, when I have no time to do the research in advance.  We don’t like making you wait on hold while we research the answer.  We also need to read the material 3 times and then when we think we understand it, read it again, as  Justice Frankfurter  said.

 

More Research

As a negotiating tacticsurprise can be a powerful tool that can be used to allow one side of the table to maintain pressure on the other side of the table. The thinking is that by dropping a surprise on the other side, you’ll be able to put them off balance and as they try to deal with the new situation, you can pounce and attempt to get the concessions or deal that you want out of the negotiations.

Hitting you with a surprise is a clever tactic. It can throw you off of your game and cause you to spend precious time trying to create a new strategy. While you are dealing with surprise, the other side can press their requests to have you either make concessions or to agree to a final deal.  the accidental negotiator.com/surprise-in-a-negotiation

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The surprise attack is one of the oldest of all negotiating tactics. It was written about in Sun Tzu’s classic The Art of Strategy. Sun Tzu’s teachings have retained relevance through more than twenty-three centuries, guiding warriors and business professionals alike to achieve triumph over opposition. A slight nuance to the surprise attack is the Ambush, where a party arrives at bargaining with many more people than were expected.

Don’t Use the Surprise Attack in Collaborative Negotiations

You want the other side to come to bargaining with the right people, information and the authority to discuss creative solutions that are mutually beneficial. Why do it differently? To conduct a surprise attack or an Ambush will be seen as confrontational and the beginning of the deterioration of negotiations. Any other cooperative or collaborative things you do in negotiations will at best be received with suspicion or marginalized.

Defend Against Surprise Attack

There are preventive and defensive measures to handle a surprise attack.

Prevention

There are no shortcuts to being prepared or building a relationship based on trust. Following these BNPs will minimize any risk of a surprise attack.

Defense

For reinforcement rely on BNP 11: Develop a joint agenda. If something comes up that you didn’t discuss when you negotiated the agenda, remind the other side that their new item is not on the agenda both parties agreed to and will have to wait for the next session.

  • Resist the temptation to discuss the new item. Even if you are a quick thinker and “good on your feet”, you won’t do as well as if you were prepared on the issue. Responding without preparing is exactly what the other side wants you to do; catching you unprepared, without information or analysis, is the reason that the other side conducted the surprise attack in the first place watershed associates.com/surprise-attack

lynda.com/being-caught-off-guard

scholarship.law.upenn.edu

 

tcdla.com

 

law.cornell.edu/rule_403

 

 

 

 

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