The American Bar Association, Law Student Division, hosts a variety of negotiation tournaments for law students. I spent a Saturday afternoon recently as a judge of an early round of the in-school competition at UC-Hastings College of Law.
The students are being taught that the outcome of a negotiation is successful when the settlement:
• Is better than the best alternative to a negotiated agreement (with this party)
• Satisfies the interests of:
the client – very well
the other side – acceptably (enough for them to agree and follow through)
third parties – tolerably (so they won't disrupt the agreement)
• Adopts a solution that is the best of all available options
• Is legitimate – no one feels "taken"
• Involves commitments that are clear, realistic, and operational
• Involves communication that is efficient and well-understood, and
• Results in an enhanced working relationship, so the parties and/or their attorneys can deal with future differences more easily.
Here’s the behavior I saw from the law student participants:
They talked face-to-face.
They were respectful.
They tried to surface the other side’s underlying issues.
They were curious and tried to understand the other side’s views.
They advocated successfully without resorting to pressure tactics or bullying.
They carried on a civil conversation about the issues in the lawsuit.
And guess what? They think this is the norm! If your last mediation was not conducted in this manner, think about adopting some of the goals the ABA is trying to teach: an enhanced buy-in by the parties to the settlement agreement and an enhanced relationship between clients and counsel based on good communication skills.