Improve Your Negotiations With The 5 Golden Rules.   LEARN THEM

The mediation process encompasses a series of negotiations. Parties negotiate with each other. Counsel negotiate with parties and other counsel.

And everyone negotiates with the mediator.

An attorney participating in a mediation should remember that dealings wit the mediator can have a crucial effect on the outcome of the matter. Given this unique dynamic, it’s critical to apply special negotiation strategies with mediators to most effectively represent clients in mediation.

Strategically gather and share information with the mediator.

In any negotiation, information is power. The more you get, the better you’ll do. In mediation, you should first obtain sufficient information to determine the parties’ goals.

But in doing so, ascertain the mediator’s goal, too. Mediators primarily want to reach an agreement, and most of their actions thus relate to this goal.

Then prepare a list of information you want, and enlist the mediator as an ally in this effort. But understand, of course, that this pipeline works both ways.

You should also determine what you want to directly share and what you want to share through the mediator. Information shared through the mediator often is viewed with greater credibility.

Use your leverage with everyone.

Mediators love to focus on leverage.

“Marty,” a mediator once said, “it’s unlikely you’ll get $500,000 at trial. I know. I’ve tried tons of these cases.” What was this mediator doing? Suggesting a big part of our leverage—what would happen at trial if we didn’t settle—was weaker than we thought.

It is important to respond effectively. Know your leverage before the mediation. And be prepared to give the mediator ammunition on how the other side’s leverage is weaker than it might think.

Bring independent standards to the mediation.

You’ll be laughed out of court if you argue that before another judge,” chastised the mediator, a former federal judge, as he addressed my co-counsel in our mediation’s first general session. “Don’t go there.”

That statement had had a great impact. Why? Because our mediator had credibility due to his credentials and independence. Many mediators are, in effect, walking independent standards. As such, clients often find them persuasive.

As counsel, use that where it’s helpful, and counter it with your own objective standards where it’s harmful.

If your mediator suggests your plaintiff’s case is worth $250,000, show him a printout of a similar case where a jury awarded $350,000. Likewise, bring evidence of the market value for a disputed item, or show how an immediate settlement might be particularly efficient for the other side.

Plan your offer/concession strategy. “I think they’ll accept that offer,” this mediator told us. “At least, they’ll view it as a good faith move.”

This advice underscores the critical role mediators can play regarding your offer and concession behavior. Specifically, mediators can provide insight into how the other side might react to your offers and help you determine your moves.

So before the mediation, map out your offer and concession strategy. Know how far you are willing to go, why and in what general increments. Then seek the mediator’s advice along the way.

But be strategic in discussing these issues with your mediator, and make your offer and concession decisions alone with your client. Don’t forget: The mediator will be giving similar advice to the other side, too.

Negotiate an effective agenda.

Our mediator initially told us his flight was leaving at 6 p.m. He left at 9. Agendas and deadlines in mediations often have flexibility. Negotiate them. If the mediator’s agenda doesn’t serve your interests, negotiate a better one. If the mediator imposes a deadline, evaluate its flexibility.

Finally, if your alternative is likely better than their last best offer, don’t be afraid to walk. As long as the jury hasn’t yet brought in a verdict, there will still be time to settle.

Published December 1, 2001 ABA Journal

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