Every so often, I am told by a party and/or an attorney participating in a mediation that she/he must leave by a certain time; that is, she/he has only but so much time to negotiate. Sometimes, the party or attorney will tell me this at the start of the mediation; other times, she/he will tell me this in the later stages of the mediation.
In response, I silently wonder if she/he is telling me the truth or using a negotiation tool that, hopefully, leads to resolution. As explained in this month’s edition of Negotiation (Vol. 11, No. 4, April 2008) published by the Program on Negotiation at Harvard Law School, many negotiators will set a deadline, as a strategic tool, to reach an agreement. Research on this topic revealed “. . .that negotiators who revealed their own deadlines to their counterparts achieve better outcomes than those who keep their deadline secret.” (Id. at 4). By disclosing the deadline, a party motivates the other party “to make quick concessions with the goal of reaching a deal.” (Id.) It can help each party to “avoid costly stalling tactics and conduct” negotiations more efficiently. (Id.)
The author also notes that time deadlines should not be confused with mounting costs. For example, one party’s mounting attorney’s fees will not have the same effect on the opposing party as the fact that the mediation must terminate (for example) by 6:00 p.m. so that a party can catch a plane. The attorney’s fees issue is the concern of only one of the parties, not both of them.
Finally, if a party does set a time deadline, it is not always wise to provide a reason or explanation for it, especially if the reason is a weak one. The example given is having to sell a car by a date certain, explaining that the seller is moving out of the country. Explaining the reason may actually work against a party’s best negotiated deal. In essence, in some situations, less is more.
So. . .the next time you are at a mediation, and the other party advises she/he has a time deadline and must leave by a certain time, proceed with caution: is she/he telling you the truth or is she/he using it as a negotiation tool to reach resolution more efficiently?
. . . Just something to think about.