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Learning Mediation Negotiation Technique: First, Personal and Professional Credibility.

August 23, 2012

Negotiation is an art.  And, like learning any art, it begins with learning basic  technique.  Thereafter, it involves grouping and using learned, individual techniques that will foreseeably result in your greater chances of success.

And, such technique, first, begins with establishing your individual personal and professional credibility.

Your personal credibility should begin today, if you haven’t accomplished it yesterday!  It is never too late.  See, “Mediation Strategies:  Work On Your Personal Credibility to Increase Your Negotiation Success”,  March 9, 2011.

LIkewise, your professional credibility begins similarly with a constant pattern (and reputation) of professionalism.

There are many definitions of professionalism.  I know it when I see it and I know others do also even if descriptive words fail.  But, to me, simply stated, when I include, mentally, any individual as a professional of our  legal profession, that person embodies consistent honesty, courtesy, fairness, appropriate demeanor, intelligence, preparation, ethics, competency, and commitment to justice at any personal cost.  And, it is not by chance that it is the term “consistent”, that I place first.

Should you already enjoy such a position amongst your peers, congratulations.

Should you not yet enjoy such a history, it is not too late to build one.  And, mediation is a wonderful place to start.

Other than trial,  mediation is one of the few places that allow you direct, professional contact with not only members of the bar and your personal clients, but opposing lay-persons and other professionals who quite quickly can give credibility to your professionalism (or lack of it).

In mediation, you begin your professional credibility with your first interaction with each of your opposing mediation participants and you continue that impression-building as you depart their presence.

An excellent place to start is with a pre-mediation position paper sent to your opposition!  You know how much I believe in preparation for mediation.  There is nothing that “spells” mediation preparation better than a well-structured position paper, and, if you are the plaintiff, a well-considered opening “demand”.  And, it also fulfills my other repetitive suggestion that your opposition know, completely, your position before mediation begins!

Too few on both sides take the time to prepare such papers (to their detriment).  Among other signals, perhaps it means they are simply not prepared?   Of those who do prepare and use such papers, most send such a position paper only to the mediator (to their clear gain).  Mediators are human, like a judge receiving  advance law and argument from only one side before a hearing, it is difficult to ignore the weight differential.

But those who benefit the most from such pre-position papers are those who share this paper with their opposition.  Or, at least those portions that easily can be shared without compromising your mediation strategies.

In this day of computers, simply adding to your pre-meditation position paper to your opponent for the mediator or deleting from your paper to the mediator for one to your opponent, is so easy that it is hard to understand why it is not more done.  Or, again, does this lack signal a lack of preparation for mediation?

Use your opening statement to demonstrate your competence and your reasonableness.  And, never, never, mis-state either the law or fact of your case.

Understatement is a weapon of mediation, not a weakness.  And loss of credibility through mis-statement is usually incurable.  Leave the close questions for your opposition and learn from their position on these matters.

Next, I strongly suggest if you are the plaintiff you begin, at mediation, with an opening demand/offer that is within reason.  Or, if you are the/a defendant, an initial offer within reason.

And, if you really want to establish credibility, consider a unilateral decrease (or increase) from your pre-mediation position paper to begin your formal negotiations.   You would  be amazed at what such a “reasonable” tactic can do!

I could (and probably will) write an entire article on just the opening demands/offers (beyond those already written).  See, i.e.,  “Consider the Real Estate Market When Planning Your Next Mediation Negotiation”,  December 9, 2010.

But, suffice it to say, each time you finally resolve a matter, take the immediate opportunity of reviewing the path you took to get there!  If your ending resolution is nowhere near your beginning proposals, what does that say about your credibility on your next beginning?  Your opposition really does keep track of these things.

Next, consider negotiating with speed and significant moves.  Nothing says confidence in your position more than ignoring the relative, if any,  movement of your opposition and simply negotiating to your goals based upon your pre-mediation plan of negotiation.  Admittedly, it is difficult.  But, the better ones do it!  Of course, it also implies you have a plan.

Next, leave out the rhetoric. Please.

Do you know anyone you refer to as a “professional” who is abusive in any legal setting?  Sure, there are those who seemingly make money with such a technique.  But, privately, do you consider them professional?

Mediation, and I daresay, any legal setting, is no place for other than out working and outperforming your opposition.  Not, out talking them.  If you cannot resolve your dispute, courteously, than prove your professionalism by simply prevailing at trial.  Your reputation will be enhanced far more by what you accomplish than what you threaten.

Now, with each negotiation move, suggest intelligent, thoughtful reasons for that move.  Your opposition (and your mediator) may not agree with your position, monetarily, but at the end of the day, will remember the reasoning of your thought processes.  And, if resolution is not possible that day, those thoughts will go back with your opposition for re-thinking and likely will form the basis for any settlement that does occur.

Or, if the matter is tried, the recriminations that always follow.  In the end, everyone respects intelligence, patience and reasoning.

Next, the corollary of your thoughtful moves is the thoughtful evaluation, and understanding, of your opposition’s moves.  Unlike trial, you really do need “to walk a mile” in your opponents shoes.  And, you can signal your understanding, if not your agreement, by your own counter-explanations.

Next, leave your last offer available for a reasonable time and without rancor.  You may or may not be correct on your assessment.  And, if you must try the matter, your accuracy will soon be determined.  But, in the meantime, whether you ultimately prevail or not, your opposition, lay and lawyer, will be remembering your parting demeanor and final position.

Finally, be gracious for the effort of your opposition, whether you are “successful” or not.  True professionals can disagree without personal rancor to their opponent’s position.  Disagreements should be settled by trial, not personal animosity.

Life, and the practice, are a long time.  Be able to meet your opposition as professional “friends” the next time you meet knowing your treated them professionally the last time (and every other time) you met.  Trust me, they will recall you.  It is how they recall you that you control.

And, should you ultimately not prevail, also take that as a professional.  And, learn from it.  No one is “right” all of the time.

Negotiation is an art.  You just need to work at it to master its techniques for success.  Your mediation (and entire legal career) begins with and depends upon your personal and professional credibility.

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