Legal Negotiations and Mediation
Myer J. Sankary
I. An Overview of Negotiations
- Definition – What is Negotiation? Negotiation can be defined as the process of reciprocal communications between two or more participants for the purpose of achieving or satisfying a participant's claims, needs or interests in the face of competing claims, needs or interests. Negotiations involves a complex set of human behaviors requiring an understanding of communications, sales, persuasion, marketing, decision making and behavioral theories, psychology, sociology, economic modeling, assertiveness, conflict resolution methods, and above all flexibility and creativity. Legal negotiations in mediation is a specialized area of effort that requires both natural intuitive skill as well as learned knowledge and training in substantive and procedural law as well as in negotiation strategies. As important as trial skills are, however, the successful resolution of most cases (9 out 10 cases are settled) depends more importantly on the skills of the lawyer as negotiator. In California, since most cases are now referred to mediation before trial, the negotiating skills of a lawyer in the mediation process has become even more critical in obtaining a successful outcome for one’s client. Lawyers use the prediction of probable trial outcome as a basis for assigning a dollar or other value to their cases. However, many complex factors other than predicting a possible judgment affect negotiation strategies in mediation. Unfortunately, many attorneys do not give sufficient attention to negotiation strategy before coming to the mediation. They are unaware of the process and the steps that must be taken to reach the optimal result on behalf of their client. In short, many attorneys come into the mediation without a game plan or without sufficient awareness of how to use the mediator and the process to achieve their goal. This program will consider some of the negotiating strategies that may be helpful in mediating a civil dispute. Civil dispute negotiations differ from transactional negotiations in that one or more parties has or believes she/he has legal rights against the other that are enforceable by a court of law. If the parties cannot reach an agreement, the aggrieved party can compel the other party to defend against the charges in a judicial proceeding. As we all know, the judicial process involves a high degree of risk and uncertainty in outcome, unpredictable delays, invasive discovery proceedings, and a substantial cost of time and money. The two parties are compelled to deal with one another, unlike the business transaction where the dissatisfied party can walk away from the negotiations. In a judicial proceeding the defending party cannot walk away and find someone more pleasant to dispute with. Consequently, because of the compulsory nature of the judicial process, one or the other party can engage in and get away with much higher levels of aggressiveness and unreasonableness than would be tolerated in a transactional setting. This raises the question as to which approach is more effective in mediation - cooperative negotiations or competitive negotiations. Negotiations is Essentially a Process of Selling: Successful negotiators are excellent salespersons - they know how to sell not only their product, but also themselves. A negotiator must have credibility with the other parties to be convincing. A legal negotiator must know her case like a salesperson knows her product. An effective negotiator knows the strengths and weaknesses of her case. A successful negotiator will examine the interests, needs and requirements of the other parties to determine what will motivate the other side to buy her Aproduct A successful negotiator enters the negotiations with confidence that she will succeed, but does not display arrogance, superiority or inappropriate emotions. One of her objectives is to demonstrate why her proposal is reasonable and should be accepted. She will price her Aproduct to sell, but will make sure that she starts high enough to have room to trade down to her Aobjective. She will set the tone of the negotiations - she will determine whether her client wants to preserve the relationship with the other party or intends to set an example for defendant's outrageous behavior and to demand punitive damages. A good negotiator will make sure that she is negotiating with those in authority - just as a salesman wants to deal with the highest executive who can make a decision. Successful negotiators can usually demonstrate why their last proposal is in the best interests of both sides and is a win-win outcome. Unique Features of Legal Negotiations 1.. The Challenge for Legal Negotiations A. In Litigation a) To end litigation through negotiations vs. judicial determination b) To obtain settlement terms that satisfies interests of all parties and achieves a better result for the parties than by judicial determination B. In Business Transactions a) To achieve business and financial objectives b) To maintain business relationships c) To reduce risks and liability d) To foresee and avoid problems e) To provide for consequences arising from obligations set forth in agreement f) To provide for efficient and cost effective method of resolving disputes 2. Preconditions for Negotiating a Settlement of Litigated Matter a) Uncertainty of litigation – neither party can predict outcome b) Each party has credible threat of prevailing on one or more issues in litigation c) Leverage - power, legitimacy, ethical and equitable claims, timing, economics d) Creation of environment where all participants, including attorneys, believe that the certainty of the proposed settlement will satisfy the interests of the parties more than the risk of an uncertain outcome that may imposed by the court.
- Barriers to Conflict Resolution - Why do Parties Fail to Reach Agreement? Barriers to Conflict Resolution - most negotiations will at some point reach an impasse. Successful negotiators will examine why negotiations fail and will try to overcome barriers to resolving disputes; they are prepared to move past the roadblocks with the help of the competent mediator. One of the leading authorities on the subject of legal negotiations is Professor Robert Mnookin of Harvard Law Scholl, who raised the following question in a seminal article: AWhy is it that under circumstances where there are resolutions that better serve disputants, negotiations often fail to achieve efficient resolutions? In other words, what are the barriers to the negotiated resolution of conflict? He identifies four major obstacles to achieving a negotiated resolution of conflict:
- Strategic Barriers - calculated steps to maximize one-sided gain can create a barrier to agreement. It arises from the tension between self interest and joint gains - how will the parties divide a fixed pie:
- discovering shared interests and maximizing joint gains (increasing the size of the pie) versus
- maximizing one's own gains where more for one side will necessarily mean less for the other (trying to take the biggest slice of the pie for oneself)
- intentional use of secrecy and deception to gain advantage (misleading the other party about your intentions) may have the opposite effect.
- Principal/agent problems - the conflict of interest between the agent's goals and objectives and those of his principal - also the party at the negotiating table may have others to answer to - an adjuster must answer to his manager, a union rep must answer to his union.
- Cognitive and Psychological Barriers - judgments of parties and their agents are influenced by powerful psychological forces - making unwarranted assumptions about the motives and intentions of the other party can create a barrier; decisions about accepting an offer is made with uncertainty and risk. Loss aversion and framing issues have an impact on the way participants view the facts and influence judgement..
- Reactive Devaluation of Compromises and Concessions - we tend to diminish the value and attractiveness of the offer or proposal from the other side simply because it originated with a perceived opponent. Mnookin advocates mediation of disputes to overcome each of these barriers when the process is understood by the participants. Awareness of these barriers can help lawyers develop better negotiation strategies to become more effective in the mediation process. Mnookin recently published a book on legal negotiations, “Beyond Winning, Negotiating to Creat Value in Deals and Disputes” (Belknap Press of Harvard University Press).
- Strategic Barriers - calculated steps to maximize one-sided gain can create a barrier to agreement. It arises from the tension between self interest and joint gains - how will the parties divide a fixed pie:
- Select a Negotiation Style – Cooperative and Collaborative vs. Competitive and Adversarial; Positional Bargaining vs. Principled Bargaining on the Merits In “Getting to Yes,” Professor Fisher recommends a negotiating style which he advocates is both efficient and wise. His systematic approach laid out in the “Getting to Yes Workbook” suggests that a good negotiator must be prepared to enter the negotiations with a checklist of items that will guide you through the process. Fisher’s checklist includes the following seven primary elements: Interests – what do we need or care about is more important than demands or positions Options – what other agreements (or terms) are possible Alternatives – what other choices might satisfy our interests other than this one Legitimacy - we do not want to be treated unfairly; by what external standards can we measure the fairness of the agreement to avoid exploitation? Communication – to reach agreement efficiently, we must communicate effectively Relationship - a good agreement will strengthen the relationship Commitment - a good outcome will encourage the parties to keep their promises
- Closing the Gap – Proposal and Counterproposal: Successful negotiators know how to close the gap between each proposal and counterproposal. They know how and when to present the next concession and how to use the mediator to measure and fashion the counteroffer. They know when and how to use Adistributive bargaining and when and how to use Aintegrative bargaining or Aprincipled negotiations.” Often, negotiations become difficult because of the emotions and psychological barriers that prevent the parties from exchanging proposals. The ability of negotiators to communicate proposals and counterproposals require an understanding of the underlying personal issues that may separate the parties. One of the best books on the subject of communications in a difficult environment is “Difficult Conversations,” by Stone, Patton & Heen (1999).
- Making a Smart Choice - after you have presented your viewpoints, exchanged proposals, narrowed the gaps, overcome barriers, you and your client will be faced with making a choice B whether to accept the last final offer, delay the decision, or refuse the offer and go to trial. There is no such thing as the Aperfect decision in accepting or rejecting the last and final offer of settlement. The best that you and your client can do is to make a Asmart choice, based upon a rational and consistently applied decision model. See ASmart Choices, (Harvard Business School Press 1999) an excellent book by Hammond, Keeney and Raiffa, who have set forth a proven roadmap for decision making that will take some of the guess work out of this important part of the negotiation and mediation process. The approach is based upon eight integral elements, summarized by the acronym, PrOACT. The authors argue that a smart decision requires a step by step analysis that includes the core considerations of the Problem, Objectives, Alternatives, Consequence and Tradeoffs. The three remaining elements -- uncertainty, risk tolerance, and linked decisions B help clarify aspects of more complex decisions such as whether or not to take the last proposed offer to settle. In making a critical decision whether to accept an offer, the litigant should isolate three essential considerations:
- What is the litigant's chances of winning at trial and, if won, the chances of different possible jury awards.
- The time and psychological stresses associated with going to trial and of not going to trial, together with the degree of the litigant's regret if she loses or elation if she wins.
- The litigants' willingness to take risk B the individual's risk tolerance factor. at p.127
- Close the Deal - your success as a negotiator depends upon whether you can close the deals that you should and pass the ones that are not good for your client. If you enter the negotiations with confidence that you can settle the case on terms acceptable for your client, you should prepare a written settlement agreement that meets your criteria and offer it to the mediator at the appropriate moment. You should bring the agreement on a computer disk so that reasonable modifications can be made depending upon the circumstances. An effective closing gambit is to have your client sign the final written proposal and have the mediator submit it to the other party(ies). Your written proposal signed by your client confirms your client's commitment to the proposal, and it helps the mediator sell your final offer to close the deal.
II. Some Distinctions Between Advocacy at Trial and Advocacy in Mediation Trial advocacy requires a special set of skills, especially in preparation, legal research discovery, and in the presentation of your client's view of the facts, and application of the law. The litigator will give compelling reasons why the trier of fact should allow his client to prevail over his opponent whom he hopes and intends will be the Aloser. The outcome of the trial is based in part upon (1) the relative rights of the parties (based upon the facts and legal precedent) as determined by the trier of facts and (2) the relative power (financial resources) of the parties to wage the legal battle Your objective through the litigation process is to zealously advocate your client's position and to control the process to your advantage. But the actual outcome of the litigation will be imposed by a judicial officer or a jury vested with a higher authority. One major distinction between trial advocacy and mediation is that mediation is a process that will not result in a clear cut victory for one side and a loss for the other. Litigation is a Awin-lose gambit with a high degree of risk and uncertainty. Mediation attempts to achieve a Awin-win outcome with the objective of obtaining certainty by concluding the dispute in accordance with the terms of a mutually acceptable agreement. Whereas the judge or jury imposes the outcome upon the litigants, even against their will, in mediation the outcome of the dispute is entirely within the control of the litigants. Some of the reasons mediation is so successful are as follows:
- Cost effective
- Timely resolution
- Flexible - innovative solutions
- Parties retain control of outcome
- Opportunity to exchange valuable information
- Opportunity to get an evaluation from a respected neutral - including risk and probability of outcome
- Reduces Ahassle factor associated with continued litigation
- Eliminates uncertainty, costs and risk of trial.
The role of the mediator is an important factor in the successful and efficient outcome of the mediation:
- To establish a process for resolving disputes
- To facilitate a settlement through joint and separate meetings of the parties
- To encourage communication between the attorneys and the parties
- Assist in defining the issues - clarifying misunderstandings
- Explore alternatives - building options to maximize gain and examining resources
- Examining risk factors of possible options -
- Explore the consequences of each option with each party
- Inquire as to feasibility and acceptability of settlement proposals - test risk tolerance of client
- Examine and address the underlying interest of each of the parties
- Deal with the emotions of the clients and possibly the egos of the attorneys
- Assist in drafting the settlement agreement - avoid gaps that can become future conflict
- Some mediators (judges) give opinion about likely outcome at trial - risky gambit
- Keep the process going when negotiations reach impasse
- Make "what if" proposals when timely and appropriate
Three essential requirements for successful mediation:
- All persons with full settlement authority must be present
- The Participants must be willing to devote the time to go through the process
- All present must have an interest in and exert a good faith effort to settle
Mediation advocacy requires an attitude adjustment and a paradigm shift - your role as attorney is one of problem solver and conflict manager. Threatening to use power (by obtaining court orders and engaging in further discovery) usually fails. Demonstrate that you understand the needs of the other party and that you are in a problem solving mode. Remember in mediation, you are not an advocate who is seeking to prevail over the other party, but rather you are seeking to get the other party to agree to your proposed settlement which is in your client's best interest.
III. Two Basic Approaches to Negotiations – Cooperative (Collaborative) and Competitive (Adversarial) Many studies have been conducted about the different approaches to negotiations with the objective to determine which approach is most effective. The results indicated that two patterns of negotiation are pervasive - the cooperative or collaborative and the competitive or adversarial. Neither approach has an exclusive claim on effectiveness. Use of the cooperative pattern does not guarantee effectiveness, any more than does the use of the competitive pattern.
- The following are some characteristics which have been used to describe effective/ cooperative negotiators: Ethical conduct
Maximizing settlement for client
Getting a fair settlement
Meeting client's needs
Maintaining good personal relationship with the other side
Accurately estimated value of the case
Knows need of client
Took realistic opening position
Able to listen to and evaluate opposing position
Knew needs of opponents client
Willing to share information
Willing to move from original position
Logical (not emotional)
Tactful and Sincere
Constructive and helpful Relationship
Offered Creative Options
Cooperative An effective cooperative negotiator is not ever seen as a pushover, or one who is eagerly willing to compromise his client's claim for a quick settlement.
- Characteristics of the Effective/Competitive Negotiator: Goals: Maximizing settlement for client
Obtaining profitable fee for self
Outdoing or outmaneuvering the opponent Competitor Traits: Tough
Made a high opening demand
Took unreasonable opening position
Used take-it-or-leave-it approach
Disinterested in needs of opponent's client
Did not consider opponent's needs
Willing to stretch the facts
Knew the needs of own client
Careful about timing and sequence of actions
Revealed information gradually
Used threats Obstructed Uncooperative Domineering The focus of the Competitive Approach to negotiations is gamesmanship, having a principle objective of outdoing or outmaneuvering their opponent. They have a high level of interest in tactical or strategic considerations, suggesting that they orchestrate the case for the best effect. Rather than seeking an outcome that is Afair to both sides, they want to outdo the other side; to score a clear victory! The competitive negotiator is frequently seen as being primarily interested in increasing his fee, as opposed to preserving relationships and being reasonable. The competitive negotiator scoffs at the cooperative's goal of trying to accomplish a Ajust outcome. The competitive views negotiation as a poker game - you put the best front on your case and you try to make the other fellow think that his weaknesses are bigger than he really ought to consider them. Cooperatives feel that cases should be evaluated objectively, on their merits, and that both sides should seek to find the most fair outcome. Competitives view their work as a game in which they seek to outwit and out-perform the other side. Despite their differences, both are rated as highly effective:
The following are similarities of highly effective but different negotiating styles:
Thoroughly Prepared on the Law
Thoroughly Prepared on the Facts
Effective trial attorney
Skillful in reading opponent
- Characteristics of the Ineffective Competitive Negotiator Egotistical
Unsure of value of the case
Unrealistic opening positions
Made high opening demand
Used take-it-or-leave-it approach
Narrow range of bargaining strategies
Unwilling to share information
Used bluffing and puffing
Disinterested in opponent's position
Inflexible - took position and was unwilling to move
Ineffective as trial attorney
- What makes a negotiator ineffective? lacking such characteristics as follows:
courteous and fair
Which style of negotiation is best for you? It depends on the circumstances. It is best to change styles where appropriate. The style of negotiation is a very personal one, based on the experience, intuitive knowledge and skill learned in the negotiating situation. Some researchers have discovered that reliance on intuitive experience may account for the low percentage of effective attorney negotiators. Self esteem, personal identity, the drive to win, to achieve, personal leadership qualities, risk taking propensities, need to control, aggressiveness, ethical flexibility, level of mistrust of others, tolerance for ambiguity, disorder and confrontation and the need to be respected are personal factors that shape the way in which an individual approaches negotiation. P. Jean Baker, AHow a Mediator Can Choreograph a Facilitated Negotiation. Individuals negotiators may not have much choice about the basic approach they use, which may be determined largely by one's own personality and experience. Experts recommend that attorneys should be concerned with improving effectiveness within their style of preference than with changing style. Studies show that both styles can be effective, but that there are substantially greater number of effective attorneys of the cooperative type than of the competitive type. Williams, supra, page 41. However, other studies show that being conciliatory in the face of aggressive demands of an opposing negotiator will diminish the amount obtained for such a negotiator. Indeed, a Atit for tat strategy is required where your opponent uses the more aggressive style of competitive bargaining. That does not mean that you will be required to remain in a competitive bargaining position if the other side shows a more cooperative attitude. You should be prepared to move between the competitive and the cooperative styles of negotiation depending on the circumstances, the individuals, and timing. AKnowing when to hold them and when to fold them, is a good strategy in poker as well as in high stake legal negotiations in a mediation. Effective negotiators can adopt either style convincingly as needed to gain advantage. This type of versatility is something to be desired. The effective negotiator needs to develop an approach that satisfies three conditions: (1) it should protect and advance the interest of his client; (2) it should deal effectively with the gamesmanship of the other party; (3) when appropriate, it should be cooperative in working toward a common mutually acceptable solution. Williams, Legal Negotiations, supra. In their seminal work on negotiations, AGetting to Yes: Negotiating Agreements Without Giving In “(1981), Roger Fisher and William Ury call their approach Aprincipled negotiation or Anegotiation on the merits, and they contrast it with Ahard positional bargaining and Asoft positional bargaining. They argue that positional bargaining is inefficient, produces unwise agreements and endangers ongoing relationship . They recommend another approach which involves the following stages:
- Separate the people from the problem - disentangle relationships from the problem
- Focus on interests, not positions
- Invent options for Mutual Gain
- Insist on using objective criteria
- Formulate your BATNA - best alternative to a negotiated agreement
- Use negotiation jujitsu - don't defend your ideas, invite criticism - ask questions, pause
- Consider the one-text procedure
- Use language to direct attention to the substantive issues - not to blame parties:
"Please correct me if I'm wrong. "
"We appreciate what you've done for us."
"Our concern is fairness."
"We would like to settle this on the basis of independent standards, not on who can do what to whom."
"Trust is a separate issue."
"Could I ask you a few questions to see if my facts are correct."
"What is the principle behind your action?"
"Let me see if I understand what you are saying."
"Let me show you where I am having trouble with your reasoning."
"One fair solution might be..."
"We believe a fair number to settle this matter might be $xxx."
Fisher and Ury believe that how you negotiate can make a big difference in a situation where there is a chance for agreement and can affect the outcome that you find favorable or merely one that you find acceptable. How you negotiate may determine whether the pie is expanded or merely divided, and whether you have a good relationship with the other side or a strained one. When the other side seems to hold all the cards, how you negotiate is absolutely critical. Getting to Yes, supra, page 177.
IV. Preparation for Negotiation Strategies in Mediation Prepare the case - for trial and for mediation Know your case - facts and law - both supporting and negative elements Know probable economic value of your case compared to other similar cases decided in that venue Know your client - what are your client's interests in the outcome (prioritize) Money Benefits Recognition - apology - references Revenge - vendetta - principle Reduction of tension Aversion of loss and uncertainty Elimination of conflict Keeping business/family relationship Know yourself - do your interests conflict with your client's Know the negotiating style of the opposing attorney - cooperative or competitive? Know the interests of your opponent in resolution of the dispute Consider creative solutions that will satisfy your client's interest as well as your opponent's interests Bring a draft of a written settlement agreement on computer disk Prepare negotiation strategy - what styles to be used and when Know your BATNA and WATNA
V. Selection of appropriate mediator - Reputation for fairness Reputation for neutrality Reputation for creative and innovative option building Reputation for effectiveness What personal skills does mediator have to deal with feelings and emotions, if required? Knowledge of substantive area Determine dominant style of mediator - facilitative vs. evaluative/ broad vs. narrow? Which is best for your case? Riskin's Grid . Will mediator disclose defects or oversights that might affect the outcome? Does mediator have training and experience specifically as mediator? What negotiating skills does the mediator have? - judicial settlement techniques or integrative - option building collaborative skills? Will the mediator assist parties in drafting the final agreement?
VI. Develop A Negotiating Strategy in Advance of the Mediation
- Three strategic negotiating focal points:
- Interests - parties try to learn each other's underlying needs, desires and concerns and find ways reconciling them in the construction of an agreement Common concerns, priorities and preferences necessary of an integrative or mutually beneficial agreement that creates value for the parties. Addressing the interests of each the parties can lead to successful resolution of the conflict. This is called integrative bargaining.
- Rights - parties try to determine how to resolve the dispute by applying some standard of fairness, contract or applicable rule of law. Slavish adherence to an outcome based upon legal rights leads to distributive agreement B one in which there is a winner and a loser or a compromise that does not realize potential integrative gains. Each party believes his or her rights outweigh the rights of the other.
- Power - parties try to coerce each other into making concessions that each would not otherwise do. Also leads to distributed agreement and potentially can result in a desire for revenge, non-compliance or creation of future disputes. Threatening the use of power, strikes, lockout, massive discovery, usually results in similar responses which can spiral out of control. Use of power should be only a last resort.
- Do you want the mediator to place a value on your case? Is your case one that requires a detailed analysis of the evidence, the law, and the likely outcome at trial? Your strategic focal point will be shaped by understanding the negotiating direction of your opponent. If your opponent is strictly focused on a rights based, power based outcome, you may require a mediator who is prepared to give an opinion about the merits and value of the case. Generally, when the defense is offered by insurance counsel, evaluation of the merits and likely outcome at trial will be required. If it is apparent that either your client or the other party would benefit from a strong sense of having their Aday in court, you will want the mediator to conduct the proceedings as a mini-trial, even hearing from the witnesses in joint session or in private caucuses. Be cautious, however, about requesting or demanding that the mediator give an evaluation or opinion of the dollar value of the case. You may get your wish!! This entails great risk and may damage settlement opportunities. If both parties request evaluation by the mediator, it is better strategically for the mediator to give a range of values rather than a specific number. The party who is dissatisfied with the valuation will not have confidence in the mediator which will diminish his ability to facilitate an acceptable resolution. The winner may be put in an awkward dilemma that if he does not hold out for the number suggested by the mediator, he will be viewed as weak or as not having faith in his ability to litigate the case. Hence, a valuation by the mediator which one party does not accept may prevent settlement of a case that could have been settled and drive the parties to litigate the outcome.
VII. Some of the Psychological Principles at play in legal negotiations. Birke and Fox contend in their article on this subject that Athe terrain of legal negotiation is strewn with psychological barriers that stand in the way of efficient settlement, and that awareness of these barriers will help negotiators avoid pitfalls so that they will more often reach mutually beneficial settlements. at page 57. Egocentric biases in determining value. Tendency to generalize from small sampling. Heuristics affects judgment Egocentric bias - people tend to define what is Afair in a self interested manner Anchoring and adjustments - making extremely large demands or very low offers to set range of distributive bargaining. Belief in reciprocity - to obtain concessions by opponent. Perspective biases. Overconfidence. Erroneous perceptions that other party's interest in diametrically opposed to their own In research facts and law, tendency is to find supporting evidence, but overlook negative information Biases in predicting outcome in litigation Effect of framing - perception of agreements as potential loss tends to encourage one to act in a more risk-seeking manner than those who perceive agreements as potential gains. One should frame offer to show benefits or gain to opponent. (Eg. AI believe the value of my case at trial is at least $300,000, but my client is willing to accept $225,500 today, a saving of almost $75,000 to defendant ) Perception of negotiations as zero-sum game - the more the other party gets reduces what you get Tendency to escalate commitment to an initial course of action irrationally Tendency to be willing to harm oneself in order to punish those who they perceive to be acting unfairly - eg. Client who is willing to give attorney Awhatever it takes to fight perception of unfair opponent - (avoid perception that one is acting unfairly) Decision Styles - decisive, flexible, hierarchic, integrative, and systemic styles affect negotiation styles
VIII. Specific questions relating to the mediating process? Whether or not to make opening monetary demand? How much should the opening demand be? In distributive bargaining, this is a critical determination B too large a demand may be an insult resulting in no reciprocating offer or one that is equally insulting B too low an offer, limits your ability to reach your aspiration or even your reservation point. When to make demand? Before the mediation? Make first offer through mediator? How to make offer? Supported by facts and law? What conditions - what limitations? Should you permit your client to participate? Offer range of value to mediator that would be acceptable B the range being in excess of your reservation point. Inquire about the opponent's Arange of value , rather than specific number. (Investigate comparable results) What is your BATNA and what is your WATNA? Have you left anything on the table that you might have gotten through harder bargaining? Or going to trial?
IX. Use the Mediator to Your Advantage Is it ok to let your opponent to have ex parte discussion with mediator? Do you have the mediator's commitment to keep information confidential? Ask Mediator's assessment of other side's overall range of settlement - low to high? Deal each card from your deck timely to move toward your objective Advise mediator of your range from low to high without revealing your reservation point. Encourage mediator to transmit proposals in private caucuses - support your case
X. Common Mistakes in Mediation Failure to consider a range of negotiating strategies appropriate for your case Setting unrealistic preconditions to convening a mediation Failure to prepare your case - unable to show rational basis for value or other demands Failure to address the weaknesses in your case and how to overcome them Failure to prepare your client regarding risk and realities of litigation Failure to understand the effect of Areciprocity and the cycle of Power and Rights vs. discussion of Interests Failure to understand components of the ADifficult Conversation - facts, feelings, identity - avoiding blame, focus on learning about contribution and solutions Impatience - wanting to leap to final solution too early - before the parties are ready. Improper offer or demand - too soon, too much or too little. Lack of plan to develop value in your case Intimidation by mediator (judicial officer predicting outcome) Unwilling to consider negative aspects and risks - biases in assessing value Failure to develop your BATNA or reservation point or your WATNA Failing to use a mediation brief to educate the mediator and other side Willingness to take the last offer - perhaps premature - failure to ask for more when appropriate Failure to assess when you have reached the limits Choosing the uncertainty of litigation over the certainty of settlement
XI. Techniques for Breaking Barriers Write simple proposal signed by client to submit to other side. Have both parties write proposals and submit confidentially to mediator; - Let mediator decide between the proposals - If numbers are not more than $xx apart, let mediator split the difference - Let one party divide the pie and the other party choose Request that mediator make a proposal that would include interest of both parties Additional suggestions for breaking negotiation impasse:
XII. Conclusion The study of negotiation theory, practice and strategies can be one of the most important tools in your professional career. Studies have demonstrated that negotiators who are well prepared, have a game plan, and are willing to follow a systematic approach to negotiations such as offered by Professor Fisher or Professor Mnookin, will consistently over a long period of time achieve better results for themselves and their clients than negotiators who depend on intuition, ad hoc behavior and luck.
Bibliography See catalogue of books published by The Harvard Program on Negotiation, The Negotiation Journal, and the Harvard Negotiation Law Review, etc Fisher & Ury, Getting to Yes, Negotiating Agreement Without Giving In, 2d Edition, Houghton Mifflin Company, (1991)
Fisher & Ertel, Getting Ready to Negotiate, The Getting to Yes Workbook, Penguin Books (1995)
Howard Raiffa, The Art of and Science of Negotiations (1982) Hammond, Keeney and Raiffa, Smart Choices, Harvard Business School Press (1999)
Robert H. Mnookin, Beyond Winning, Negotiating to Create Value in Deals and Disputes, Belknap Press of Harvard University Press (2000)
Stone, Patton & Heen, Difficult Conversations, How to Discuss What Matters Most, Penguin (1999) Gerald Williams, Legal Negotiations and Settlements, West Publishing (1983)
Cloke and Goldsmith, Resolving Conflicts at Work, Jossey-Bass, Inc.(2001)
Richard Birke & Craig Fox, APsychological Principles in Negotiating Civil Settlements, 4 Harvard Negotiation Law Review, Spring 1999.