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Mediation Negotiation Tip: Is “Fear Of Failure” Ruining Your Negotiations?

December 10, 2011

How many times in mediation negotiation have you had the thought that, at least for that day, you just weren’t going to be able to settle your case ? What immediate effect did simply that mere, fleeting thought have upon you?

Admit it, at that moment your entire core of settlement effort began to fade and your energies immediately mentally shifted to other pressing issues, solely because you were feeling that  all of your efforts that day were going to end up as a total waste of time.

I call this very real, predictable and dangerous stage of any negotiation for any party or party’s attorney, “Fear of Failure“.  And, unless you (and your mediator) take immediate steps to prevent this feeling from creeping into your negotiations or immediately remove such a feeling should it begin to appear, it will likely become a self-fulfilling prophecy.  Your mediation will fail.

Negotiation is known to be a marathon, not a sprint.  And, fear of prematurity of negotiation is always endemic.  Until, literally the eve of trial, it is assumed that more negotiation will always be available.  And, unfortunately it is believed by many that even the most sure evaluation and “never going to offer another dime” position will likely find themselves having to settle for “one dollar more”, if offered too early.

However, this assumption that every negotiation and every mediation can be premature leads inevitably to this additional problem of the fear of failure (of premature negotiations).

Fear of failure in mediation is not real fear but really just a feeling of disappointment of failing to meet ONE of your goals, i.e., finding an alternative for your client should they wish one.  The emotion, however, resulting from apparently losing the immediate ability to obtain an alternative is a powerful one. And, depending upon when the emotion strikes, it can destroy the very effort necessary to obtain the alternative.

Fear of failure in mediation, most often begins with a defendant.  And, it usually begins with their unspoken personal thought that they are the only one “really making any effort” because they are the “only one who will be writing a check” should mediation negotiation succeed.   In short, unless they perceive “fairness and interest” and soon, they lose interest in trying.  They genuinely believe they are just premature in their efforts.

But, most defendants, despite their rhetoric, are also not really as sure of their “bottom line” as they believe they are.  And, even though they are usually more “sure” of their position than any claimant is or can be, they rarely will commit to their “bottom line” unless they are certain the matter will settle.

The same, however, is also true of the Claimant.  It is the rare Claimant that will believe that any “final offer” is really final, particularly if an offer is not perceived to be “reasonable” until someone convinces them it is final.  And, particularly if the parties’ alternative at trial is not immediately at hand.  They too, look upon negotiations that fail as simply “premature”.

The problem?  At any given point in mediation, and particularly at mediation, if one side or the other begins to believe that their final demand/offer made will not conclude the case, their final offer simply will never be made.

Worse, the necessary preliminary offers to even get to these final position(s) may not even attempted.   The result is a totally wasted mediation where no one obtains even valuable information of what could have been accomplished with effort.

Fear of Failure, of course, is not really true fear. True fear is believing something terrible is just about to happen.   But like true fear, one of the first steps to prevent such fear is in avoiding the fear in the first place.  And, then, should it occur despite your best efforts, the other obvious step is in removing the fear by convincing yourself that there is no basis to your fear.


First, part of your opening negotiation/mediation effort requires you initially totally convince the other party that the matter CAN be resolved, and that day, with reasonable positions on the part of all of the parties.  Unlike the combat aura of trial, it is necessary that all of  your words and deeds express your desire for conciliation that day, not combat in the future.  Should your negotiations fail, you will have plenty of time for the bravado of combat later.  See, Mediation Strategy: Leave Your Guns At Home?.  August 9, 2011

“Initially” means, beginning with a reasonable “demand” and/or responding with a reasonable initial offer to instill the belief that the negotiations can become successful.   See, Negotiation Tip:  Putting The For Sale Price On Your Horse, January 31, 2011. and Consider the Real Estate Market When Planning Your Next Mediation Negotiation.”, December 22, 2010.

“Can be resolved” means that during your early negotiations, your movement toward your “best” position is made quickly, and without rancor or negative comment.  If you have done your homework, you should know where you can go and move, quickly, to something nearer your bottom line than you began.  See, Negotiation Tip:  Don’t Run Out Of Time,  January 25, 2011   and Mediation Negotiation 101“, July 4, 2011.

If both sides of any dispute will do this, both sides will, at least initially, believe that resolution is possible.  Thereafter, if the parties cannot resolve the matter for legitimate reasons, it will then be only the difference of evaluation that scuttles the resolution, not a failure of the process due solely to a premature fear of failure.

At the least, both sides will know what could have been accomplished if both sides had agreed solely upon value.

Second, if,  however, despite your best efforts, this fear of failure still strikes your negotiations, you and your mediator must step in immediately to regain the momentum.

How?  By bold steps by you and your mediator to regain the momentum about to be lost.

Those steps may be a bold, aggressive offer where none have occurred before.  It may be changing the method of negotiation.  It may be more aggressive use of the mediator to suggest alternatives to get the matter back on track.  But, regardless, immediate and different approaches will be required.

However, both sides can also avoid the endemic fear of failure by always simply remembering that any negotiation and mediation are merely voluntary alternatives to the combat of trial.   You owe it to your client to allow them this choice, if permitted.  But, if not permitted, it should be the opposition that is more uncomfortable than you.

Under mediation circumstances,  at the worst, failure at that mediation due to a lack of any fair choice means only that the case you have prepared to prosecute or defend will now permit you to do so.  And, for the moment, you have no valid choice!  What better position for any trial lawyer than to be able to try his/her issues without any reasonable alternative for any disappointed client to later look back to?

Have you ever wondered why your mediator was more up-beat about your chances of resolution than you?  It is because any good mediator also knows that this cancer of the fear of failure is almost always a self-fulfilling prophecy!  He/she must, therefore continually prop up the participants to an achievable goal of success or the mediation is doomed to failure.

Mediations are difficult enough.  But the fear of failure may be the worst enemy of any negotiation and certainly in mediation.  Use your best efforts to avoid it from becoming a factor in your mediations.

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