One process in mediation is negotiation – from it’s about the money to I want you to do something which fulfills a need generated an issue which has come up because it trespasses on one or more of my interests, and so on. There are many books on negotiating – from the practical through the theoretical. I’m not competing against these books – I offer some thoughts and examples from my experience.
• Information game? - At times a person with better information about their case does better. Why? Your “position” is “factually” stronger than your opponents – if you can communicate your facts in a manner which is accepted or not countered by your opponent. Call it “evidence” if you must – however keep in mind that “facts” presented in mediation are not subject to the rules of evidence as they are in a trial. One accusation leveled against mediation by those who believe this is a weakness of mediation – provides a license to lie. However, here’s something to keep in mind – facts represent a view of reality – your opponent may have the same, similar, different or opposing reality. So, since, a decision to agree in mediation has to be mutual – your facts may not be the way to agreement. What else can you do?
• Alternatives – Too often it seems clients plan for and expect a solution based purely on their logic – be it fact or otherwise based – and leave themselves vulnerable to failure in reaching agreement. Even if they consider alternatives they do not spend sufficient time I thinking through the consequences of agreeing to an alternative. At other times an alternative comes up because an opponent or even a mediator provides an alternative you have not thought about. And, they accept because it sounds good at the time. Mediation is an iterative process which can consume considerable time and even intense effort. Negotiators are sometimes very clever- even gifted – at wearing down an opponent – seeming to push a case to impasse and then magically an alternative is offered – mediators often wait until it’s almost impasse before they offer a “mediators suggestion” which can be an alternative – jumping in too early may be perceived as “un-objective”. Mediators also get worn down. So, clients should be prepared to consider with and deal with alternatives which come up in mediation – don’t get caught in a state of weariness seemingly at the verge of impasse – a sudden burst of energy “have you thought about ….” followed by “would you consider this a viable alternative …” – and either reject or accept the proposal. If possible be positive – maybe it is being offered in good faith and has value – so trust but verify – think an alternative through – ask for a continuation of mediation – and for heavens sake don’t cave when you genuinely feel it doesn’t fill a need to resolve issues which hurt my interests.
• Time – So many people are unwilling to dedicate sufficient time or weigh the value of time when it comes to mediation. “I’m tired”, “I just want to get it over with”, “I’m missing work”, “this is just a waste of time”. Keep focused on the issues and just how valuable it is to resolve a conflict or dispute. Using time to advantage is sometimes effective on the part of some negotiators who are very adept at making time play in their favor. As mentioned above timing can be a critical factor. Just think about your experience in going to a car dealership where the salesperson has been trained to get and keep you engaged on what has been proven to work in the dealerships favor. Calculate your own timeline and timeliness – what works in your favor and even consider what works to the mutual benefit of you and your opponent.
• Should I be competitive or collaborative in terms of negotiating? Start by asking how big is the pie we’re negotiating over? If it’s just not big enough for the two of you then think in terms of making it bigger – through collaboration. If it’s big enough and you just want your share or your piece back then your probably better off negotiating competitively. Studies have suggested that competitive versus collaborative – competitive does better. When there’s money involved, and that’s it – then you may want to just get as much as you can – however – if there’s more than just money then you might want to alternate between competitiveness and collaboration. What about when you feel in a weak position? Should you make the first offer or let an opponent go first? Some say going first let’s you set the range in a negotiation – think about it – is this what you want to do – set the range? What about setting expectations for a negotiation on a complex set of issues? Should you stake out a position – seem open to negotiate – or be rock hard? These are all considerations in deciding on a negotiating strategy.
The biggest mistake often made is coming in unprepared – the court sent me here type of thinking – or “I don’t know the other side suggested it” or “I don’t know”. The more you know about what mediation is and the better developed your negotiating strategy is – the better chance you’ll be able to connect in a way that gives you a chance to reach mutual agreement – without, at least feeling you’re, capitulating – blaming mediation and a mediator for a failure.
• Information game? - At times a person with better information about their case does better. Why? Your “position” is “factually” stronger than your opponents – if you can communicate your facts in a manner which is accepted or not countered by your opponent. Call it “evidence” if you must – however keep in mind that “facts” presented in mediation are not subject to the rules of evidence as they are in a trial. One accusation leveled against mediation by those who believe this is a weakness of mediation – provides a license to lie. However, here’s something to keep in mind – facts represent a view of reality – your opponent may have the same, similar, different or opposing reality. So, since, a decision to agree in mediation has to be mutual – your facts may not be the way to agreement. What else can you do?
• Alternatives – Too often it seems clients plan for and expect a solution based purely on their logic – be it fact or otherwise based – and leave themselves vulnerable to failure in reaching agreement. Even if they consider alternatives they do not spend sufficient time I thinking through the consequences of agreeing to an alternative. At other times an alternative comes up because an opponent or even a mediator provides an alternative you have not thought about. And, they accept because it sounds good at the time. Mediation is an iterative process which can consume considerable time and even intense effort. Negotiators are sometimes very clever- even gifted – at wearing down an opponent – seeming to push a case to impasse and then magically an alternative is offered – mediators often wait until it’s almost impasse before they offer a “mediators suggestion” which can be an alternative – jumping in too early may be perceived as “un-objective”. Mediators also get worn down. So, clients should be prepared to consider with and deal with alternatives which come up in mediation – don’t get caught in a state of weariness seemingly at the verge of impasse – a sudden burst of energy “have you thought about ….” followed by “would you consider this a viable alternative …” – and either reject or accept the proposal. If possible be positive – maybe it is being offered in good faith and has value – so trust but verify – think an alternative through – ask for a continuation of mediation – and for heavens sake don’t cave when you genuinely feel it doesn’t fill a need to resolve issues which hurt my interests.
• Time – So many people are unwilling to dedicate sufficient time or weigh the value of time when it comes to mediation. “I’m tired”, “I just want to get it over with”, “I’m missing work”, “this is just a waste of time”. Keep focused on the issues and just how valuable it is to resolve a conflict or dispute. Using time to advantage is sometimes effective on the part of some negotiators who are very adept at making time play in their favor. As mentioned above timing can be a critical factor. Just think about your experience in going to a car dealership where the salesperson has been trained to get and keep you engaged on what has been proven to work in the dealerships favor. Calculate your own timeline and timeliness – what works in your favor and even consider what works to the mutual benefit of you and your opponent.
• Should I be competitive or collaborative in terms of negotiating? Start by asking how big is the pie we’re negotiating over? If it’s just not big enough for the two of you then think in terms of making it bigger – through collaboration. If it’s big enough and you just want your share or your piece back then your probably better off negotiating competitively. Studies have suggested that competitive versus collaborative – competitive does better. When there’s money involved, and that’s it – then you may want to just get as much as you can – however – if there’s more than just money then you might want to alternate between competitiveness and collaboration. What about when you feel in a weak position? Should you make the first offer or let an opponent go first? Some say going first let’s you set the range in a negotiation – think about it – is this what you want to do – set the range? What about setting expectations for a negotiation on a complex set of issues? Should you stake out a position – seem open to negotiate – or be rock hard? These are all considerations in deciding on a negotiating strategy.
The biggest mistake often made is coming in unprepared – the court sent me here type of thinking – or “I don’t know the other side suggested it” or “I don’t know”. The more you know about what mediation is and the better developed your negotiating strategy is – the better chance you’ll be able to connect in a way that gives you a chance to reach mutual agreement – without, at least feeling you’re, capitulating – blaming mediation and a mediator for a failure.
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