Premature negotiation: how to get rid of performance anxiety at the mediation table

In my line of work, I help people do it all the time. And they all do it differently.

Some of them boast that they’re good at it–but in fact know only one way to do it. Some will stick with the position they’re comfortable with. Some lack confidence. They worry they won’t measure up. Others lack experience.

But in the end, with the right motivation, I can often help them do it better. And do it until everyone’s satisfied.

I’m talking about negotiation.

Hey, what else did you think I was talking about?

If you want to reduce performance anxiety at the mediation table, consider the following things you can do to make the earth move–or at least to be a more effective negotiator at the mediation table and elsewhere.

1. Preparation.

It’s been said that for every hour of negotiation, a skilled negotiator puts in four hours of preparation. One of the biggest strategic mistakes I see people make is coming to the table too soon–when they haven’t done the necessary preparation in advance. Besides just crunching the numbers, you should give thought in advance to:

Your interests. What are your needs? What goal do you want to achieve and why? Why does settlement make sense? If you’re at the table representing a client, you need to spend time in advance making sure you understand fully your client’s interests–something every advocate should do whether they’re headed to mediation or not.

Consider the other side’s interests as well. If you know what they need, you may be able to meet their interests in a way that will be more cost-effective to you.

Your alternatives. What happens if you don’t reach negotiation? How good are your alternatives? What can you do to improve upon them so you can negotiate from a position of strength? Consider the other side’ alternatives as well–how do their alternatives stack up against what you might be able to offer?

Options. Think of as many different options that you can. What will meet your needs? What will appeal to the other side? Is there a way to meet your interests and theirs as well? Come prepared to be creative.

Objective criteria. How will you know that any deal you reach is fair? What about your demands? What objective criteria are they based on? How can you convince the other side that those demands are fair?

Your relationship with the other side. What kind of relationship do you want to have with them when the negotiations are over?

Communication. What do you want to say and how are you going to say it? If communication has proved troublesome in the past, what can you do to improve it?

2. Be receptive to new ideas.

Chances are you need no help to bargain the old-fashioned way. You know, the kind where one side begins with an outrageous demand and the other side responds with an equally outrageous counteroffer, followed by incremental steps toward each other until you both find yourself agreeing to a dollar amount neither one of you likes. A mediator can help you try something different that may help you create more value than traditional bargaining can produce. It’s all about expanding, not dividing the pie.

3. Become self-aware.

As Gustave Flaubert observed, “There is no truth. There is only perception.” And our perception is distorted by the cognitive biases that all of us who are human beings are prone to. What might you be missing? Here’s a shopping list of cognitive biases for negotiators to watch out for.

4. Listen more, talk less.

The more you listen, the more you’ll learn–and the less chance of saying something that you may regret later. Listen to educate yourself about their interests. And talk to educate them about yours.

5. Learn to negotiate.

If you’re likely to be a repeat player at the mediation table, then it makes sense to learn mediation from the inside out. Take a mediation training to learn about the theory and the techniques of a process that is designed to help people negotiate.

Build yourself a negotiation library. Some must-read books for negotiators include:

3-D Negotiation: Powerful Tools to Change the Game in Your Most Important Deals, by David Lax and James Sebenius

Bargaining for Advantage: Negotiation Strategies for Reasonable People, by G. Richard Shell

Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher and William Ury

The Negotiator’s Fieldbook, edited by Andrea Kupfer Schneider and Christopher Honeyman

Influence: The Psychology of Persuasion, by Robert Cialdini

So be prepared for your next negotiation–or your next mediation session. Do your homework, get some training, read up on negotiation techniques.

The earth will be moving for you in no time.


Diane J. Levin

Diane Levin, J.D., is a mediator, dispute resolution trainer, negotiation coach, writer, and lawyer based in Marblehead, Massachusetts, who has instructed people from around the world in the art of talking it out. Since 1995 she has helped clients resolve disputes involving tort, employment, business, estate, family, and real property… MORE >

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