[This presentation is an expanded discussion of the last of four guidelines offered in a previous article titled “Getting to the Bottom Line - Guidelines for Achieving Success at Mediation’]
When all pre-mediation work has been completed, it is important for the attorney and client to have a common agreement of what their strategy will be for negotiation at the time of the mediation. This preparation should include knowing what the starting point will be for negotiations, discussing possible hypotheticals, recognizing the need for alternatives and the ability to be patient with the mediation process. Developing this plan for negotiation will allow the parties to better perform the “dance” that occurs in mediation for an eventual settlement that all sides can agree on.
Opening Positions for Negotiation
One of the best ways to realize success at mediation is to be sure that the opening positions by the respective parties fit within a reasonable range. If the case has any length of litigation history, there has been a recognition and acknowledgment by both sides of the strengths and weaknesses of the case. If all evaluation is completed, the potential range of case value can be determined for purposes of settlement. Therefore, it is essential that opening positions or numbers should carry some credibility reflecting realistic case value. An opening number that is reasonable will establish good faith in resolving the case at mediation.
Oftentimes, demands and offers are received as unreasonable or offensive. This will only initiate a counter reply from the other side of an equally offensive nature. At this point, further negotiations will likely harden positions. Before presenting your opening number, be sure to have an arrangement with your client that the amount is within a reasonable zone of acceptability so not to be offensive This will insure that you will not be sending the wrong signal of an insult to the other side.
Discussion with the mediator can be helpful in establishing the opening positions. The mediator may have had the opportunity of communications with the other side in order to get a feel for the potential ballpark range for case resolution. The mediation negotiation does not need to be short circuited by unreasonable, unrealistic or insulting opening numbers. The mediator can be helpful in giving guidance of where to start. Begin the negotiation dance by sending the message of good faith without having your client feel short-changed from the onset.
Pre-Play Potential Negotiation Hypotheticals
We all know that a negotiation rarely goes down the same predictable path. As a result, the attorney should get the client ready to know that the negotiation could take unexpected turns. In order to better equip the client for these possible curve balls, take time to educate the client how this could play out under multiple scenarios. This will give the client a better appreciation of how concessions can be made, compromises reached and alternatives presented so to keep the dialogue open, candid and productive. If a client goes to mediation and all of a sudden feels that the other side has presented something unexpected, the client may pull back becoming unwilling to further negotiate wishing instead to withdraw from the mediation. Presenting potential hypotheticals of how the mediation can play out will make it easier for the client to participate without becoming discouraged.
Another advantage of pre-playing hypotheticals is that it allows the attorney to demonstrate how to respond to offers and demands. In essence, you give the client a chance to role play the negotiation using imaginary formulas without the possible stress of a mediation setting. From this type of role playing the attorney gains by doing a rehearsal of sorts with the client to find options for the bottom line. The possible increment adjustments of numbers or likely concessions to be made will already be presented to the client in this imaginary setting allowing the attorney to get a sense of the client’s approval or disapproval for give and take tactics.
Plan for Alternatives in the Negotiation
When the going gets rather rough in the settlement discussions, it is always good to have developed alternatives in your strategy or have some alternate angles to follow. This can be described as your “BATNA” or Best Alternative To a Negotiated Agreement as discussed by the authors Roger Fisher and William Ury in their book “Getting to Yes”. Your BATNA can be used as an alternative when at one time earlier you might have considered it to be unavailable or unwilling to approach. However, due to changes in circumstances, you are placing the BATNA on the table as a possible option. The BATNA can allow for flexibility and imagination in negotiations. BATNAs can take the negotiations outside the box for more creativity. The intended purpose is to keep the negotiation process going. Considerable work and effort has been expended and there is no reason to get discouraged and walk away.
Stalemates, impasses and roadblocks are often encountered in the negotiation dance. Then what? If the BATNA does not resolve the gridlock, many times “what ifs” can unclog the blockage. For a case that relates strictly to the payment of money, this idea can often be characterized as “bracketing”. Here you are merely offering suggestions for the other side to consider. For example, “what if we go to (fill in the blank), will you go to (fill in the blank)?” or “if we are willing to do (again fill in the blank), are you willing to do (fill in the blank) ?” The “what ifs” are used to test parameters of each side and find how much one is willing to bend in respect to the other. There is no commitment to the suggestion until everyone agrees and moves simultaneously. Using the word “if” allows for reflection and gives the chance to create options by modifying what was offered. All along, the intended purpose is to relieve the congestion of the negotiation and continue to work towards resolution.
Patient, Persistence and Perseverance
The negotiation dance can test one’s patience and require the need for persistence and perseverance. The so-called “three P’s” are critical for maintaining the negotiation dance. The attorney may have to remind the client throughout the course of the mediation that patience is necessary in order to continue to be persistent and persevere. Using the “three P’s” as part of your approach will help extend the dance so that the client is not inclined to surrender quickly. If the parties have presented opening positions that are characterized as reasonable and realistic, you will likely have already hurdled into the arena where persistence and perseverance become vital states of mind for the negotiation.
The client, along with the attorney, need to be on the same page with their strategy so that they both can endure the process. If the attorney and the client do not have a common view of the amount of time that it will take for the negotiation dance to complete a settlement agreement, there is very little likelihood that the parties will realize the desired result Mediators are trained to be patient with the process and to allow the negotiation dance to develop. The mediator will consistently try to discourage the parties from walking away from the negotiation if there is even a slight signal or glimmer of continued movement. Therefore, it is likely in the mediation that the parties will hear the mediator reference patience, perseverance and persistence resisting efforts by some to speed things along. In effect, you need to allow the negotiation dance to proceed even if you believe the music is going too slow.
The negotiation dance can be cut short if the parties do not have an adequate plan developed prior to the mediation. Be sure that the attorney and client are on the same page with regard to opening positions that are realistic and not taken as an offense by the other side As the negotiation proceeds, expect the unexpected. To prepare for the unusual, the parties should have alternatives ready to continue the negotiation. If your BATNA does not resolve an impasse, consider possible options that allow for some reflection before commitment. Finally, keep the end target in mind when trying to arrive at success in mediation by using patience, persistence and perseverance. With all the work that has gone into the case, there is no reason to pull the plug on the negotiation dance preventing a likely resolution from occurring.