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Mediation Negotiation: Plan A Soft Landing

November 20, 2013

Planning your projected end to your mediation should be equally as important as planning how you should begin.  And, just as your mediation approach must be “softer” than your litigation approach, so should be your end game during mediation.

I firmly believe that the art  (yes, ART) of mediation is totally unrelated to the art of litigation. They are often the antithesis of each other, or, perhaps, should be.  See, i, e., Opening Statement:  Try a Different Approach, January 31, 2013.  In my opinion, too often the “battle demeanor” of litigation overpowers the “compromise demeanor” so very necessary to success in mediation that can avoid trial.

If you follow my blog postings you know that I strongly advocate for a totally different approach to mediation, particularly to the negotiation in mediation, than as commonly practiced by most litigators.  In short, I suggest that using a softer, more understanding and concilatory demeanor and attitude than usually employed by litigators can pay big dividends in the context of seeking the resolution available without trial by mutual compromise in mediation.

I have repeatedly written about this “difference”, including for beginning of mediation, the parties opening statements, and  suggestions as to a different demeanor in the process.  See, i.e., A Radical Idea?  Consider Waiving Your Opening Statement,  September 30, 2011: Leave Your Guns at Home, August 15, 2011; or,    Body Language Control May Be Helpful, September 14, 2011.

I now also suggest that ending your mediation negotiaton should be approached with a similar goal:  the “Soft Landing”.

By “soft landing”, I am suggesting that the best way to either end, successfully, your mediation, or at the worst, set yourself up for later post-mediation resolution success begun at mediation, is to use a simple technique that allow both you and your opposition to end with your final settlement position made clearly known, but in such a way as to be totally inoffensive to your opponent.

In summary, you need to be able to convincingly persuade your opponent that your final negotiated position is a well-considered, long-held position, that they can fully accept as the final opportunity for resolution, simply by the method in which it is carefully and foreseeably revealed.

For the defense, it should be a bit easier.  Usually it is the defense that has a pre-determined negotiation plan.   See, Mediation Negotiation Technique:  Create a Negotiation Plan, October 16, 2012.   They usually know if and where they will begin their offers in mediation (sometimes) and where their offers will likely end.

Thus, for the defense it is simply a matter of planning their “last three steps” in their negotiation to use the soft landing technique.  And, the techniques is simple:  give reasonable and timely warning of approaching your final position AND approach that final position with incremental offers that reinforce that advance warning.

First, in concluding the defense position, the next, to the next to last, offer step should be the initial “fair warning” conveyed to the plaintiff that the defense is nearing their final position.  This “warning” may be something as simple as advising the mediator that they are “almost out of money to offer”.  Any competent mediator should then know how to use this information.

And, if this is a true statement and position, my suggestion is that this will also be the largest of the last three offers that will then be made. By dividing the amount of monies left to be proposed into three final-type moves, this initial final move must then dispose of the greatest amount of the remaining monies, leaving only two relatively smaller increments to then offer for the two following steps.

I refer to these last steps as “stair stepping”, and suggest that all offers that then follow must each be smaller tnan the one before to confirm both the “warning” and the clear end-game process.

Unless the opposition (and the mediator) is not paying attention, each following, and increasingly smaller amount-offer, adds clear emphasis to the collateral  “running out” verbal warning.

Second, the next to the last offer, must then be a smaller amount than the last, and more than half of the remaining monies to be offered.  And, this next to last offer must be conveyed with that conveyed “next to last” actual statement to be conveyed to the plaintiff.

The purpose of these first two “steps” is to ultimately ALLOW fair warning to the plaintiff and the resultant and necessary  face-saving to the opposition.  This is a critical component to this technique.  But, frankly, should also allow the plaintiff to respond in kind.

Obviously, then, the last offer, must be conveyed in the smallest amount of the three steps and with the firm, statement, to be delivered “gently” by the mediator that this defense offer is the last one, the FINAL one.

(Note:  The term “final” has many meanings and uses.  More importantly, it means different things to each negotiator.  And the wise Mediator should make sure he/she is aware of each negotiator’s own definition of this term.  It is also usually at this three-step stage of the mediation where any competent mediator really “earns” his fee!)

During the defense’s employment of this technique, what is or should be occurring on the side of the plaintiff-complainant?

Answer:  A similar plan should be employed to permit a soft landing for the Defense!

It should come as no surprise to anyone that it is the defense who spends far more time in evaluation of claim and in risk analysis.  After all, they are the ones writing a check in mediation resolution or if unsuccessful at trial, after a verdict.  The plaintiff, normally has a reasonable idea of what he/she believes is adequate compensation for the claim, but frankly, if pressed the plaintiff usually simply hopes to “get offered every dollar the defense will pay”.  Understandable, perhaps, but not very scientific for negotiation advance planning!

Accordingly, it is (unfortunately?) relatively normal for all plaintiffs (in non-liquidated damage claims) to use as their plan, “start high” and “stay high”, usually to the frank consternation of the defense (and the mediator).

However, that plaintiff “mentality-strategy” eventually always comes to an end as the defense begins their “end game”. 

Thus, the need for the Plaintiff’s soft landing counter-approach.

First, hearing the “next to next to last” statement/offer, SHOULD get the attention of counsel for the plaintiff.  It is now time to begin YOUR end game.

The plaintiff’s first reaction (if not done so long before) is to immediately plan your own “final demand/offer”; the end of negotiation is coming and when the defense makes their final offer, it is imperative that you are able to make yours!  This final position ( of course, already pre-planned in YOUR mediation negotiation plan) must now be calculated to allow you to end your counter-negotiation, with the same fair warning and notice to your opposition that you are to receive.

First, your first counter, your next to next last “demand”, must be your largest deduction from your last position and must leave you (finally?) with your last two moves to be made in a range that will at least entice an informed defense.

And, it will be your last chance to dump the real “fluff” in your position (unless, hopefully, you have done so long before).  You must not be caught “dumping” your position in your two final moves!  “Dumping” is simply too revealing of your lack of conviction to your own evaluation to allow you any remaining credibility.

When the “next to last offer” comes, you must then also respond by a reduction in your position of more than half of the remaining room you have retained between where you are and your own “final position”.  And, it must be far less than your last reduction.  In short, this next to last “demand” must leave only a small amount of movement to respond, if necessary, when you receive the inevitable “final offer” from your opposition.

Finally, and obviously, when the “final offer” then comes from the defense, the plaintiff-complainant has only two choices.  First, accept the final offer.  Or, second, counter-propose your own “final demand”!

Again, the term “final” if often one of art; but clearly of legal consequence if rejected.  And, good negotiators must be cautiously prepared to choose wisely, either to confirm finality or to test remaining possibilities.

Once again, this is where your mediator-choice often proves the most value to the parties. Making sure each party  still feels empowered with full self-determination, but now with the maximum knowledge, is critical.

Now, both sides are softly positioned, respectfully, at their end of negotiations, but both have used the appropriate technique to permit the opposition to also “know” their  respective positions are the best ones likely available, but in the least offensive way.

Thereafter, whether the negotiations are then successfully concluded or resolution is simply still not possible, either way, using this technique of offering the opposition a “soft landing” to their respective final positions leaves each opponent with clear and fully informed knowledge of  their opponent’s final position.,

There may remain a difference of opinion of evaluation for resolution, but no hard feelings or misunderstanding about any final position.

Thus, the soft landing.

If you, plaintiff counsel or defense counsel, are not practicing this type of end-game negotiation, you really should be!  It really does work.

(Happy Thanksgiving, 2013!)

Dan, from Vero Beach, Florida.

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