Skip to content

Mediation Negotiation Technique: Create A Negotiation Plan

October 16, 2012

Success is never an accident.  Or, at least not repetitive success.   All  repetitive success requires planning.

To be at ease in any venture, in total control of the process, directed toward a specific goal and on planned route to that goal, you simply have to work hard, in advance

Accordingly, to be repetitively successful in mediation negotiation, you must create and follow a mediation negotiation plan.

Creating your negotiation plan requires a few minimal specifics:  an advance resolution point evaluation, an appreciation of your opposition’s position, specific incremental negotiation goals and a reasonable, organized work method designed to achieve those goals during your mediation.

You must  begin your plan, first, and foremost, by thoroughly and properly evaluating your most likely resolution point.

You obtain that value from estimating your likely future trial outcome, See, i.e.,  Rule One:  Know Your Alternative(s) Should Mediation Be Unsuccessful.”, December 19, 2010, and then discounting that potential future trial outcome by the known savings in time and money (and uncertainty) resulting from resolving the matter for more/less now!

Accordingly,whether plaintiff/complainant or defendant, your first task is to evaluate your likely outcome at your future trial, should your total negotiations fail.  This may be your most important step for any negotiation, and the one most often neglected.  In short, how can you evaluate any good offer to resolve a dispute today if you don’t know, well and confidently, your likely future trial outcome, and the additional time and cost (and uncertainty) to get there?

There are many ways to accomplish this resolution point: in-house verdict examinations,  informal discussion-evaluations with similar counsel, jury verdict research, mock juries, and even computer models for such evaluations.  And, of course, accurately knowing the additional costs of continuing the litigation.

The larger point is that you must, by some method or methods, examine every potential outcome, objectively, frequently and honestly to arrive at a fair range of potential future outcomes to use for your negotiation plan.

If you fail this initial step, you may as well not bother with the remainder of your plan.

Next, you must understand and appreciate your opposition and their position.  Whether you agree or not with any point raised by your opposition, your must appreciate that your opposition clearly feels as strongly about their position as you do about yours.  It is thus critical that you understand why.   See, “Consider the Real Estate Market When Planning Your Next Mediation Negotiation, December 22, 2010

The reason:  only one point of view is going to be accepted by your alternative trier of your dispute.  You must objectively determine which of each point of  your dispute is more likely to be accepted by that future neutral fact-finder.

If their point is more likely to be accepted than yours, either find a foolproof way to defeat their point, or accept it, at least for your evaluation purposes.

Trial lawyers, as advocate-warriors, always have a difficult time with this step.  Again, however, the best lawyers know when they should concede a point, if only to reach the “most likely” outcome to consider.

In the end, to prevail you need not win every point;  only the majority of them.

Step three, you must establish your mediation negotiation goals.  There are many goals to consider (and record) in mediation negotiations, but those that are most important include: 1)  your opening demand/offer  2)  your final mediation goal (if resolution is NOT possible) and 3)  your final resolution goal (if resolution IS possible).

Your opening proposal, if you are the plaintiff, may well determine your final mediation outcome.  See, “Putting the ‘For Sale’ Price on your Horse“,  January 31, 2011.   The same is true of any defendant’s initial offer.  The more reasonable your initial proposal (compared to your final position that day), the greater your success potential.  (And, because you know exactly where you CAN go, you can be more confident in your opening generosity.)

It is also critical to get off to a productive start.  And, this is equally true, whether the plaintiff or a defendant.  See, Is ‘Fear of Failure’ Ruining Your Negotiations“, December 10, 2011.  However, being able to ignore the opposition’s early  seemingly unwarranted responses due to your pre-planning is another plus to your plan.

Likely your negotiation will be done incrementally.  However, you must be prepared to evaluate the usefulness and timing of bracket negotiation.  There is a place for both (and other) techniques.  At each exchange, however, it will be important to carefully compare your present posture with your working plan (and time remaining and the advice of your mediator.)  Note, comparing your position progress does not mean complaining about or demeaning the responses of your opposition.

Early on you will also need to determine whether resolution seems possible.  A different set of processes go into play depending upon THAT answer.  Among other decisions is whether all of your cards can be played (or your “lowest/highest” proposal made) or whether some need be withheld.

And, of course, your positioning for tactical use (by any party)of the proposal for settlement rule needs to always be kept in mind.

Finally, then, you must plan your work-schedule-method(s) of how to reach your planned goals, including final resolution.

The parts of the work method you must know:  1)  the time allotted for your actual negotiations (not to be confused with the total formal mediation time presently scheduled!)  2)  the number of moves you wish to make to reach each of your goals  3)  how much information, if any, you wish to convey (and when) until you have determined whether mediation resolution is possible.  4)  your use of brackets, or not 5) whether or not you wish to “worry” about your opponent’s positions in negotiation and 6) how to best use your mediator.

I always encourage speed, at least in the opening exchanges that set the parameters of the negotiations that day.  Try not to bog down your mediator with your arguments until he/she really needs them.

You need to also leave room (and time) for adjustment.  You may not wish to alter your plan if no facts change.  But, facts can and do change!  And, your mediator, a neutral, is a wonderful resource to test close issues of fact.  Be prepared to alter your position as these facts become more acceptable or understandable.

And, an alteration may have to be to your timing plan for your negotiation moves.  Again, your mediator is a good source to use as a sounding board.

It is also important to plan for patience.  Each side has its own processes.  Everyone’s “needs” need to be met, not simply yours.  Your mediator should be able to assist you in understanding the parties needs.

And, of course, you will want to have a draft of exactly the terms you will either propose or accept upon your successful mediation resolution in the written settlement agreement.  At the least, use this draft as a handy checklist of the total  issues you must resolve.

Keep in mind that regardless of the rigors of your route, eventually, one side or the other(or both) will announce that they have reached their final resolution position (for that day).  Even if resolution is still (then) impossible, you know far, far more than you did when you began and you now know your options with much more clarity.

And, if your plan is a well thought out as it should be, you can now simply prepare for trial.  But, there still remains the very good chance that if your plan is better than your opposition’s,  sometime soon your dispute will still be resolved prior to trial.  And, likely according to your plan!

A successful mediation requires a negotiation plan.  Trust me, once you have completed your negotiation plan, your mediation will seem so much easier!

What Do You Think? Your Insight Can Be Helpful To Others.

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: