Keys to Mediator Success: Negotiation and Caucus


by Dudley Braun

February 2013

Dudley Braun

(Review Parts 1, 2, 3, and 4)

Some words, spoken at the right time, in the right way, in the right context, can be particularly powerful. They can sometimes cause a new thought or unfreeze a position. This compilation is intended to assist trained mediators and add possibilities to their already extensive vocabularies. It offers many ‘tried and true’ expressions in a variety of contexts to help them unlock hidden possibilities and improve mediation successes.

General Negotiation & Private Caucus

[Shuttle information, interests, priorities and perspectives; not just positions]

”I’d like to talk to both parties privately to clarify some things I

heard and to discuss where this negotiation goes from here.”

“I think it would be helpful if I met privately with __ in order to

discuss the issue of _____ in this case.”

“I’d like to explore some things with each of you separately. While I’m with

__________ this might be a good chance for you to take a break, get some

refreshment or fresh air. I’ll get back to you as soon as possible.”

“Now that we are behind closed doors what are your thoughts?”

“Is there anything you want to express now that we’re in a confidential private session?”

“What’s important to you right now at this moment?”

“How is this going for you?”

“What’s driving this case?”

“Who have you consulted with?”

“What is important that you might not have felt free to talk about in general session?”

“Tell me what’s important here. What are your interests? What else, even minor interests?”

“I’m really sorry that happened to you. I appreciate what you went through.”

“Tell me what would be a solution proposal that would be appropriate for you.”

“Can you tell me in your own words what you heard the other party say? What are they thinking? [Might model it first for a minute summary]”

“Stand in the other person’s shoes for a second. How would you resolve it if you were over there?”

“In arguments and negotiations it’s very useful to do what actors do: Read the other person’s part. Play the role. Try it now. Watch for glimmers of new understanding to help problem solving.”

“Put yourself in his shoes. Put aside your personal feelings for a second and think about your choices. Letting this whole mess go to court is going to ____.”

“We can never expect to be creative problem solvers generating alternative ideas while we’re hanging onto judgmental certitudes.”

“What do you want them to know?”

“If you want to influence them, then you need to understand their point of view.”

“He/She is seeing things somewhat [very] differently. This is where they’re coming from.”

“Negotiation is all about finding out what the other party might want or need from you in order to give you what you want or need.”

“You might tell the other side you’re willing to give up something valuable to you, such as _____in order to bargain.”

“It’s natural to feel like fighting, but it usually inspires revenge or retreat. Getting to agreement usually gets easier by trying persuasion and proposing something related to their interests.”

“Your goal is not to win over them; it’s to win them over …to a creative solution that works for both of you. The goal is not victory; it’s a mutually acceptable agreement.”

“If your goal is to get them to change their mind, start by letting them score a few points; concede what you can and say what you want.”

“If ______ is your goal, is ______________ what’s an effective way to pursue your goal? What’s the rationale?”

“Which interests of yours does their approach fail to satisfy? How would you improve on it? In what respects is it not fair? Is there any way it can be made better for you without making it worse for ___?”

“What other ways are there of accomplishing your interests?”

“Dealing rationally with another person needs a strategy for mutual satisfaction.”

“A person can act rationally alone; but when other people are involved, reasonableness works better and inspires reciprocity.”

“My encouragement to you is to think about _________.”

“I just had a thought. It may not have any merit; but what would you think of this kind of an approach?”

“Since life and learning are necessarily full of trial and error, mistakes are inevitable and neither side should be too hard on yourself.”

“Apologize if you can. You might explain it was an inadvertent error, not intentional.”

“How willing are you to reciprocate concessions?”

“What do you consider “fair play” in these negotiations?”

“This is not an easy case. It’s a case that could be lost in court. Correct me if I’m wrong.”

“Let’s review the strengths and weaknesses as you see them.”

“What do you think the other side needs to worry about the most in this case?”

“What could the other party say or do that would address or alleviate your concerns about ______?”

“Just to be sure I understand, if we reach a “Best Voluntary Solution” is there any reason you wouldn’t make a decision in this session?”

“How does _________help or hurt the goal and purpose of resolving this disagreement?”

“If they’re not willing to go for some of your conditions, think about where you’d go from there while I’m off talking to them.”

“Now when I go see the other party, I’m going to tell them ___; and I’m going to ask them ___. They’ll probably say _____.”

“That’s a good point. Is there some way around that problem?”

“I still have faith that we haven’t tried everything.”

“You may be right that they won’t budge, but it’s worth trying.”

[Before leaving] “Tell me what out of this you want me to keep confidential. If nothing, I’ll take that as permission to share what feels useful to the negotiation.”

“I’m going to get as much information as possible. So when we’re about to go back to joint session, you’ve got to warn me which things I can’t tell the other party”

[2nd round: Start with what they’re concerned about. Take up where you left off. Phrased as a ‘gain’ is more likely to be accepted than ‘reduced loss’.]

Dollar-specific Deal Making

Coaching - Usually done in private caucaus

“When you get ready to make the first offer, keep your credibility.

If the first offer is outside the range of plausibility:

- It can appear foolish, greedy, arrogant or inexperienced

- It sends a message of disrespect at them

- Gives the other side no incentive to negotiate or take you seriously

- It can inspire anger and revenge that derails the whole thing.”

“These things usually involve some back and forth. You might expect them to start low/high.”

“Before we get into dollar amounts, how much responsibility is there on your part?”

“Make your first offer rationally defensible. Base your number on evidence and law. Make it so the other party will stay interested.”

“Start with an optimistic (not outrageous) offer that’s supportable by a comparative standard or plausible argument.”

“Don’t open with your real bottom line, leaving nothing for the other party to achieve through negotiation or you to give in trade for their movement.”

“When you make your first offer, leave yourself bargaining room to get concessions from them in exchange for your movements.”

“I’m going to encourage both sides to avoid an “insult range” of wide positions way beyond objective support.”

“If you open the negotiation with an extreme number, a BS number, it’ll likely be a non-starter.”

“An extreme opening offer (or demand) acts as a disincentive for the other side’s efforts.”

“When someone proposes a number out of the ballpark it doesn’t encourage negotiation.”

“They might be thinking: You’re not moving into a reasonable range so we shouldn’t either.”

“An extreme offer or proposal usually creates a reaction in the other party … a counter-productive emotional reaction of being mystified or irritated or very angry. This usually inspires an extreme response and sets up a barrier for progress.”

“Repeating a position or making small moves while staying high/low … sends a message that the other side is out of the acceptable range. E.g. “The gap is too large to bridge”. It can give an inaccurate or misleading message on where the real range is and won’t motivate the other side to move. Small moves at the end of negotiations send an accurate message.”

“If you consistently negotiate in your range they’ll begin to treat it seriously. It will educate them and accomplish what you’d like, most likely.”

“Look at the how much money you have left before getting to the walk-away number and think of a plan for using it independent of how fast or slow they are moving. You could build in some safety by using a series of close-to-end moves that would signal when you’re getting near your end.”

“Have a movement plan in mind, independent of what they do, not just reactive to their movements.”

“Your plan includes your goal, where you start, and movement increments as you approach your ‘walk-away’ number.”

“Movement inspires movement by the other side … and shows the case can be settled.”

“Some, just some of your options include: a. Moving a substantial distance; b. Answer with an equally out-of-range number; c. Do what you would have had they proposed something more reasonable; d. Pack up and leave. What other options might there be? Which has the most positives and least negatives?”

First Offer

“It takes some courage to make the first move.”

“Thanks so much for making the first step. It shows a lot of courage.”

“How about you starting the negotiation or ‘get the ball rolling’ with an offer. You can’t expect ____ to negotiate with him/her self.”

“What would you like to put on the table?”

“What would you like me to carry forward to the other party?”

“I know you have some ideas about what kind of a number is reasonable. But I encourage you to be fair and reasonable here. If you try to over-negotiate this thing you might miss an opportunity with the other party.”

“You should make an offer that encourages movement by the other side.”

“[If ‘out of ballpark’] Wow, that’s hard, because if you start there, they’re going to feel they have to leave or start unreasonably (low/high).”

“Okay, but something equal to the best you might achieve at trial can easily be seen as a “non-offer”.”

“What would help them understand the proper ballpark? What would give them an idea of where they have to be to keep it moving forward toward settlement?”

“It’s like inviting people to an art gallery showing. You can’t have just one painting on the wall. They’ll loose interest and go away.”

“Before we communicate that offer, let me ask you: Do you have any room to move? It’s important to protect the future of the bargaining process.”

“It might be a gesture of goodwill for you to begin by offering ___ e.g. to pay medical bills.”

“As I give them your proposal do you want to add some sort of commentary, some words that explain or convey more than the proposal alone can do?”

“That’s a good start. Let me take it to them and see what they say. I assume you have some flexibility, right?”

“How does your starting proposal relate to your case analysis? “

“What signal are you sending with that offer?”

“How you expect them to react to your offer? Hopeless? Defensive & cautious? Encouraged?”

“What’s your “wish amount” and your “walk away” amount? I won’t disclose any amount to the other side without your permission.”

“As you begin, it might be good to have in mind three dollar amounts: What you aspire to; what you’d be content with; and third, what you could live with if it came to that.”

Movement Strategy....

“When someone makes an offer, there are only three possible responses: Accept, reject or make a counter.”

“It may not be all you wanted, but at least it represents movement. That’s

encouraging. How about making a counteroffer and see what response you get.”

“This offer may be disappointing to you, but it is not the final offer. What new offer can you make?”

“Concessions don’t always mirror each other. A concession you make may naturally seem greater if it feels like it hurts more to you. Same in reverse to them.”

“Concessions are the language of cooperation. Each party needs to sacrifice somewhat to secure a joint resolution.”

“Remember, the value or quality of an offer is both the dollar amount and the terms. When they make an offer, you decide the value and importance of the terms.”

“They made the last concession. Now it’s your move.”

“Please write down and show me what you think the other party’s first offer and final offer will be.”

“What would be (or have been) a reasonable number for them to start with?”

“What would you have them suggest?”

“What do you want to propose in order to help them do what you suggest?”

“That’s an option. That’s one thing you could do. What else?”

“I’m just wondering whether that’s our only option. Are there any other approaches that might get us moving forward?”

“What other possible outcomes occur to you?”

“Is what they’re doing affecting your thinking about what you should do? Keeping you from doing what you could to settle?”

“They gave me a new number. I took your $___ to them and they came up/down to $____.”

“Get me some more money so we can settle this case. I don’t know if you can get more authority by calling someone. Can you?”

“That’s a respectable amount. Now how do we get them there? Help me figure out how to do this.”

“They think $____is a lot of money in this case.”

“I believe they think ______. Their offer is contradictory to what they say. They say they have no room; but they increased their offer by ____.”

“Just between us, I think you’re a little light. I could be wrong, but _____.”

“They’ve now come to ____. It was a battle to get them to move, but it’s a good sign.”

“He/she says it’s very close to the end, and he/she is trying to make me a believer.”

“I’m feeling very discouraged because he/she indicated they’re close to the end.”

“I beginning to suspect that $___ would be hard for them to walk away from… and maybe hard for you to refuse.”

“Could I assume you’d reluctantly, reluctantly get to $____ if you could be sure they’d come that far?”

“We’re running out of logic. Their number may not make sense to you, but we’ve got something to deal with. Can you accept it?”

“The problem may be that we’re out of bargaining chips. What else can you offer?”

Probing: What if . .

“If they had been reasonable, what number would you have begun with?”

“What response to your offer do you think would have been appropriate?”

“____ has made what he/she things is a fair offer. Do you see it that way? [if not] What explains your reaction?”

“If they had opened with a more realistic number, say around ___, what size proposal would you have been inclined to make?”

“To at least keep the process going, what amount of response would you need from the other side?”

“If you want a realistic response you need to make a realistic proposal … in light of your analysis of case value.”

“How would you feel about that proposal amount if it were made to you?”

“Suppose the same thing were being talked about over there and they sent me to tell you they want a more realistic number from you. What would be your reaction?”

“Is their offer fair? Better than fair? Less than fair? How much and why?”

“How’re you feeling about where we are right now?”

“What will it take to _______?”

“It sounds to me like if you were certain they would pay ___ you might be interested in the deal, but you don’t want to send them any weak signals. Right?”

“Give me two offers: One I can disclose immediately; one I can disclose ONLY if it will unequivocally settle the case.”

“If you like, I can test your bottom line walk away number before you commit to it by asking them about it as a ‘what if’.”

“Is there a reason why ________________?”

“If you can agree with $____ you will have a Mutually Acceptable Resolution. Do you agree to this solution?”

“Do I have authority from you to test their willingness to pay/accept ____________?”

“In order to arrive at a Mutually Agreeable Resolution, you need to alter your offer a bit (upward) or (downward). Go ahead; what would that be?”

“What’s keeping you from accepting their offer?” “And what else?”

“Are you telling me (and I have no hope or dream of getting them there) if they got to $____ you couldn’t get to ($ same)?”

“Are you sure you want to end it on $_____?”

“Would you accept $________?”

“I’ve spoken to ___ and I think they’ve lowered their sights a bit from the original figure.”

“It’s time to be realistic. It’s going to be difficult to get them to accept a number under ___. (why). If I suggest a number in the low ___, say ___ would you consider that?”

“They just won’t pay ___. I might be able to get them to go for ___. Will you accept that if I can get it?”

“That’s fine. I can ask ___ about it. But think about this: ___ may need to pay less/more to save face.”

“How would you react if (other party) suggested they might be able to ______”

“Wouldn’t you want to settle for something near that?”

“You mean if they offered just _____(close) you’d refuse it?”

“Will letting go of $___ meet your need to solve this problem?”

“Why don’t I see if I can get them to look at it ___. Let me see what they say. I’ll get back to you soon.”

“Let me take this to ___ and encourage ___ to consider it.”

“Let’s see what kind of reaction you get with that offer.”

“I just want to see if they will go for it.”

“The gap between your dollar figures will be resolved. You might as well be the ones to do it yourselves.”

Would You ...

“I’ve now spent enough time with ___ to have a better sense of how far they will go today to settle. I don’t have a specific number to offer, but I’m confident I could get you somewhere between X & Y. What do you think?”

“I realize you’ve made your last and best offer at $XXX but that won’t settle the case. I’ve talked to ___ at length and I believe they would settle for a number under $YYY.”

“There’s no way to present that without something of value to him/her. He/she is going to say he/she has got to have something in exchange for that.”

“I’ve listened to each side. I believe this is the current settlement zone, called the “Zone of Possible Agreement”, from: $___ to $___. I’m going to tell it to the other side. Is that range okay with you?”

“Would you come to $__ if they come to $___?”

“What would you say to __________”

“Is ____________ something you’d consider?”

“What if you were willing to increase the attractiveness of your offer by writing a check right now?”

“Short payment plans are the most attractive. You feel you could get that done in what period of time?”

“I’ve asked ___ to agree to negotiate under $XXX provided you agree to negotiate above $YYY. I’m trying to help you both get into a reasonable range. Do I have your commitment to getting to that range?”

“How about authorizing me to increase (decrease) your offer by $__ ONLY if the other party comes down (up) by $___?”

“Would you consider $XX if I could assure you of closure? ..If that would put an end to it. … if it gives you a way out. You won’t be seen as making this low/high of an offer.”

“I realize you don’t want to spend $XXX, but if I can get the whole thing wrapped up for under $YYY how close can you get? Would you be receptive to $ZZZ?”

“She/He’s at $_______, you’re at $______. I don’t have authority from him/her to go to $_____ and I don’t have authority from you to go to the same figure. Can I go back to her/him and try to a commitment to go to that figure if you will?”

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Biography




Dudley Braun started mediating 6 years ago with community mediation panels.  This work evolved into active mediation.  He has mediated hundreds of cases with institutions such as Contra Costa County's Superior Court's mediation panel.  He combines this with his first career and his extensive training and study, driven by fascination and a desire to get better.  

 



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