David makes the strong case that mediation could have made all the difference, getting these digital technology giants to yes:
In the Microsoft-Yahoo negotiations, a mediator could have helped in several concrete ways.
First, since disagreements about the price of a company usually turn on financial predictions, mediators can help the parties structure creative options for mitigating their risks. Acquisition agreements often contain “earn-out” provisions that award benefits to the seller if the deal turns out to be a winner for the buyer. Without any investment in the outcome, mediators become “honest brokers” who can advance such ideas without the perception that they are seeking an advantage based on secret knowledge.
Second, a mediator can help the parties obtain neutral and independent opinions – as opposed to the potentially partisan opinions of the parties’ hired experts, lawyers, and investment bankers.
Third, a “mediator’s proposal” can test the waters of compromise. Let’s say the mediator asks each side to tell the mediator – on a confidential basis – whether they would accept a deal at $35 per share. This protocol means the mediator will report the answers only if both sides say “yes.” Thus, each side can take the risk of saying yes because the other side will never know unless they, too, have said yes.
Considering that mediation is “assisted negotiation“, it’s time for all of us who mediate to draw attention to the fact that mediation is not just for settling cases on their way to court or already in litigation — mediation makes sense whenever people want to negotiate better and smarter.