A monthly series of short articles on successful
mediation advocacy.
Tip # 7: “Interests Really Matter – Even
in Money Negotiations.”
“It’s only
about the money,” a familiar comment
of lawyers and judges, when a party in negotiation insists otherwise.
Is it really absurd to speak of “interests” in the typical
money negotiation, or is there something real and worth considering?
Mediation
theory is based largely upon the concept of “interests”.
The idea is that the important needs or concerns of a party are often
obscured beneath an emotionally charged and misleading array of concepts
which demonize the opposition, and justify one’s own notion of
reality. These concepts are translated into a “position” in
the negotiation, usually expressed in the form of great conviction
about the righteousness of one’s cause, and relative inflexibility
(real or feigned) in the terms of negotiation. Mediation ideally gets
beyond positional bargaining, by exploring what was unsatisfactory
in a party’s past experience, and what that party needs in the
future (i.e. interests).
In some
cases, it is easy to see the importance of interests. In
employment litigation, an employer may want to improve the culture
of a dysfunctional department while confidentially resolving a claim.
In a business case, parties may want to disentangle their affairs,
without alienating customers or vendors. In certain cases, future relationships
may be as important as any financial settlement of past disputes. However,
most litigated disputes present few obvious interests, beyond the sum
of money changing hands.
Even in a
straightforward money negotiation, the best negotiators
and mediators have a keen eye for the interests of others around the
table. Everyone in negotiation has interests beyond the sum
of money under discussion. A personal injury plaintiff may
have a spouse who
must be accounted for, or specific financial goals (i.e. to pay for
college or retirement). A young associate may need to impress the partner,
or the firm’s important client. An insurance adjuster may need
cover (or documented “new information”) to justify a shift
on a misevaluated file. Certain participants may need to experience
a measure of control at the table (unfulfilled ego-related needs have
killed many negotiations).
A little
creativity in acknowledging, and even assisting your opponent
in satisfying an interest, can greatly increase the probability of
achieving an acceptable settlement. In one recent case involving a
wrongful death with serious insurance coverage problems, plaintiff’s
counsel took defendant’s private counsel aside to acknowledge
the difficult task of protecting the defendant while generating sufficient
funding to settle. The defense posturing on liability fell away, and
the two worked together on funding a realistic settlement figure. The
same plaintiff’s attorney approached each of the two insurance
carrier coverage attorneys in a similar spirit, helping them to justify
funding at a sensible figure, without butting heads over positions.
A good
mediator will help you see and use these opportunities, without
reducing your effectiveness. Interests really do matter, to the best
negotiators.
Next month we will
consider: “Slower Negotiators Usually
Win.”
