Negotiation 101

As a mediator, I have seen many negotiation styles.  The art of negotiation is something that comes from experience and going through the school of hard knocks.  After attending thousands of mediations, I have had the opportunity to observe some truly talented negotiators as well as some not so talented.  This article is to address some of my observations on negotiation styles and techniques that I have witnessed over the years.
In mediation, the biggest chilling effect to a resolution is when parties have set unrealistic expectations.  Both Plaintiffs and Defendants suffer from this.  If the expectation for the Plaintiff is too high or for the Defendant are too low, either it will result in no resolution or the parties have to devote substantial time and emotional energy addressing those expectations.
In setting goals, all parties should consider what (in mediation jargon) is their BATNA.  That is an acronym for their Best Alternate to a Negotiated Settlement.  If each party understands what their risks and rewards are if they do not settle, then they will have gone far in setting realistic goals for the mediation.  Power negotiators have a full grasp of the value of their case going forward after a failed mediation.    
In many mediations, the day is started with the parties at polar opposites.  It is obvious that neither attorney has considered the other parties position, their goals and objectives.  It is as if the parties are mediating two completely different cases.  Much time and energy in mediation must be spent educating the parties as to their adversary’s position or state of mind.  
Some negotiators can recite the other side’s position as well as they can recite their own.    These same negotiators, as they have considered the other side’s position are better equipped to negotiate favorably for their own client.     
Offers that are tied to something relevant in the case are more likely to be given weight.  The offer:  “I will pay you the fair market value for this property as set by a third party appraiser” has more credibility than the offer that is just a number with no justification.   
An immediate acceptance of an offer may result in the person who made the offer regretting making the offer.  Stated another way, if an offer is accepted too quickly, then the party making the offer may believe that they could have negotiated a more advantageous settlement than the one they offered.  As this is the case, as a mediator, when the settlement is about to be achieved,  the pace may be slowed down to avoid having a party regret making their offer.
“Jumping for joy” or showing that type of body language to the other side may have a chilling effect in the future.  If, for example in a family law context, the wife sees the husband acting with glee over a resolution that was achieved, in future dealings between the parties, the husband can expect backlash from the wife.    
I do not recommend having the parties leave the mediation after a resolution without something in writing and signed by the parties.  I recommend that the parties bring with them a settlement agreement pre prepared with 90% of the terms included.  The terms in a settlement agreement are generally uniform, based upon the type of case involved.  If a settlement is achieved, the additional terms can be quickly incorporated into the draft and the parties can sign a full formal agreement before leaving the mediation.   
The key to a successful outcome to mediation is to take the steps to know your case as well as your opponent’s case. Taking steps before hand to address many issues solves a lot of problems that arise in mediaiton and afterwards, whether or not the matter is resolved. 

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