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Mediation Negotiation: Increase Your Pace For Greater Success

March 10, 2016

Except for its increasingly obvious negative impact on ultimate mediation success, I usually have no objection to the all-too-common “High Ball/Low-Ball/Message Exchange” negotiation technique that consumes far too much time in too many mediations . After all, I am paid by the hour and, equally, by all sides.

But, as with most of my blog efforts, I choose to report my observations to you of what practices seem to work better for mediation success and those techniques that seem so repetitively to contribute to failure.

My latest negotiation observation:  Organized, rapid movement toward your opposition’s (and your) “final” position is by far, the best negotiation technique for most mediation negotiation.  And, the least expensive.

It is also (sadly) the least common.

Too often a claimant’s offer/demand is a high multiple of what is realistically believed will be a likely verdict. And, too many defendant’s initial offers for resolution, often despite fair “demands,  are known in advance to not even permit acceptance.

How much valuable time have you also lost in your own mediations with early (and even sometimes, late) “message-offers” as one of your negotiating tools?  i.e.,  “Your opening demand/last offer is/was so ridiculous, we will respond with an equally ridiculous offer (to make our point).”

How frequently have you found that your mediation opponent often enters a fair range of the discounted verdict-value of your dispute only at the very end of your mediation?

How many of your mediations have you found both sides using ONLY repetitious exchanges of small-unit incremental bidding mindlessly filling every minute of the time initially allotted to negotiation and often requiring more?

Such flawed techniques, although sometimes successful, do not suggest the parties used a “successful” negotiation means.  In too many of these “resolutions”, usually both sides are so irritated by their effort consumed by such wasted exchanges they can hardly appreciate any resolution.

Worse, many may try to use the same technique next time because, after all, it “worked”. (However, usually, it “worked” only because one side ( often only due to the encouragement of the mediator) merely tolerated the process.)

The common denominator?  Each side felt obligated to convince itself they could not have done “one penny” better!  And, for one reason or another they could not conceive of any better way to feel they had achieved their goals.

There is a better way.

It begins, however, with the absolute minimum of each side having done an honest appraisal of the truly fair resolution value of any given dispute; See, Rule One:  Know Your Alternative(s) Should Mediation Be Unsuccessful, December 19, 2010; and, i.e., Mediation Negotiation:  One Reliable Method of Evaluating Personal Injury Damages,  December 18, 2013 and a plan to move efficiently toward that honest pre-mediation appraisal. See, Mediation Negotiation Technique:  Create a Negotiation Plan, October 16, 2012.

And it then continues only with the willingness of all sides to accept that their pre-mediation position may have at least some bias that may need to be adjusted as good-faith mediation education through the mediator proceeds.

It should also be recognized that most mediation successes can only begin once the parties have already very nearly approached their best pre-mediation positions.  Mediators work best in these final quarters.

Thus, it is the increased negotiation pace to efficiently arrive at or near each parties believed “final position” that will allow your mediator to best work to then close the relatively small remaining gap that most disputes usually have.

Consider these BETTER expedited negotiation steps for both sides:

Set the stage:  A claimant must early convince any defendant that resolution is not only possible that day, but desirable for the defendant; and, much more desirable than continuing even one more day of litigation.

Opening demands/offers therefore simply must bear some early reasonable, if not discounted, basis to the actual verdict value of the dispute. Openings that include too much “fluff” or “cushion” are easily recognized as unreasonable and a large waste of negotiation time.  Give your opponent credit; trust me, they have evaluated the potential verdict value just as much as you!

It is equally imperative for each defendant to early show a claimant that they will have a reasonable opportunity, that day, to fairly resolve their claim.

Opening responses, therefore must show some reasonable relationship to the practicalities of the claimant’s minimum position.  Initial offers that are literally mathematically impossible to accept are thus literally insulting as demonstrating your unreasonableness and specifically in direct contradiction to your likely pre-mediation promise to be reasonable!

If both of these suggested “better” opening moves are so-constructed, you are well on your way to resolution.

Now simply move on to better follow-up moves.

Second moves, thereafter must also seriously then reflect concessions not already made by opening offers.  This critical move is the move that, if the opening position still reflected too much bias, must certainly now show a real interest in resolution.  It is your last chance to regain reasonableness you lost in opening.

(Alternatively, the aggressive use of bracket negotiation may also be considered, by either side, to more rapidly alert the respective opponents of the offeror’s anticipated interest in voluntary resolution.)

Third moves by all sides again must move even more rapidly and aggressively toward the respective and advanced-known final positions.   By now each of these moves should be showing early acceptance of weaknesses and admissions of opponent’s strengths as the parties each now move very near their pre-determined end-points.

(However, if any opponent is repetitious in failing to fairly participate, then and only then, is a “message-offer” really necessary. And, only with wise use of the Mediator to make sure the message is understood.  In such circumstances, it is entirely permissible to continue such messages until the opposition “plays fair”)

By the fourth move, opponents should be at or very, very near to announcing they have reached their “near-final” or even actual final position.  Conversations with and by the mediator are critically important to make sure this is known by the offerees.

And, now finally, with your fifth move (or before?) you are, early, at that critical juncture your mediator has long sought:  that small gap that was always the real mediation issue.

And, thus, your dispute can now be much more easily resolved with the aid of your mediator and the final reasoning of reasonable people.

Why not give a “better way” a try?

And, I suggest, with these ‘better steps” alone, you will save your grateful client some serious money.

“And everyone’s getting fat, ‘cept*… (the mediator)”.

Dan, from Jacksonville, Florida.

(*See,”Mama Cass” Elliot;  Song, Creeque Alley, 1967 by the Mamas and Poppas)








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