(This is the first in a series of 7 Mistakes Really Good Negotiators Make.)
As a lawyer, I used to think that I could attend a mediation and just rely on my instincts to negotiate. Prior to the mediation, of course, I would evaluate the case and decide upon an opening demand/offer. But I would go in to the mediation armed only with my first number and the number beyond which I would not move.
As you might expect, every single book on negotiation argues against this. Here are just two of dozens:
“Getting to know a case file…
does little to prepare a
negotiator for how to establish
an effective mediation process,
how to learn each side’s interests,
and how to deal with each side’s
Of course. It makes perfect sense: I didn’t walk into depositions or oral arguments or trials thinking I’d just wing it. I’ve discovered as a mediator that I was not alone in my negotiation hubris: many lawyers don’t take the time to develop a mediation game plan.
There are two integral parts: a plan of concessions and a plan for dissemination of information.
Plan of concessions. Start with the number that you have decided is the settlement value of the case. Then, aspire higher (or lower) by ten to twenty percent. That’s the number you’d like to settle at. Choose as an aspirational number a number that people would naturally think of as an ending number. Then, decide where you want to start, a decision in which you should take into account the negotiating style of the other side. Write down 6 – 10 moves in between. These moves can be chunks of the same amount or a percentage lower for each move, or some rational sequence. As you get closer to your aspirational number, make your moves smaller to signal that you are nearing the end.
Plan for dissemination of information. Decide on 4 to 6 persuasive arguments that will help the other side move closer to your aspirational number. (If it is crystal clear to you that the case will not settle and will be tried, of course you will be less revealing, and will talk in generalities.) Analyze the order in which to present them. For instance, should you divulge your ace-in-the-hole first, so its impact can sink in on the other side, or at the end, so that it will cause the other side to bridge the last gap? You could also bring documents you expect to introduce into evidence and release them one at a time.
Having a mediation game plan should improve your negotiation results. Let me know if it works for you.
Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class actions. She has settled and mediated thousands of cases. In addition to civil litigation mediation, she also co-mediates divorces with John Duda, a marriage and family therapist.