As a mediator I’m in the fortunate position to observe negotiations firsthand as well as get a glimpse of some of the thought processes during the course of the mediation. Two observations stand out for me: people “leave money on the table” and most are quite predictable in their behavior. Put another way, better results were attainable and having successfully used a certain technique(s) in past negotiations, people resort to the same ones over and over again. It doesn’t have to be that way.
It all starts with the preparation prior to the mediation and asking one simple question: “what do I want to achieve for my client?” That means asking your client what they want- and it’s not always about what can be achieved at trial. Clients sometimes have more modest goals – repairing a relationship or terminating a long term relationship for example. Without knowing what your goals are you can’t plan an effective strategy to get there. Nor can you set your walkaway position. If you learn new information during the mediated session, you can revisit how it impacts your goals and adjust if necessary. Studies have shown that the higher you set the bar (within reason) the better your outcomes. Setting goals for your client is an integral part of determining where you start; having a walkaway or better alternative elsewhere(BAE) actually strengthens your bargaining power.
Predictable behaviors have value – particularly if you are trying to build trust; however some unpredictability can improve your bottom line. Using the same tactics again and again – e.g. packing your bags and feigning a walk out or calling a day after an unsuccessful mediation to try to slightly improve the last offer made – will be taken into account by the other side and their offers will be adjusted to counter such moves. “Final” offers at the mediation are crafted to leave some room for the inevitable next day phone call. Counsel who are most effective at mediation are those who change their behaviours from mediation to mediation. Most counsel are familiar with each other from past dealings.
Know what your client wants from the outset and work with them to set what is achievable, learn about the behaviours of opposing counsel so you can counter accordingly.You will achieve better results and greater client satisfaction. It sounds simple in theory – you would be surprised how many don’t practice it.