There are twelve essential steps to a successful negotiation. If that sounds like too much to remember, it is not. All of the steps are based on common sense and following the steps should be automatic.
- Get to the table.
- Pick the right time to mediate.
- Choose the right mediator.
- Have pre-mediation conferences.
- Set aside sufficient time.
- Prepare your client.
- Prepare a powerful position paper.
- Insist on full settlement authority.
- Maximize the benefits of the joint session.
- Set the tone with your opening statement.
- Get into a zone of bargaining as soon as possible.
- Don’t take a bottom line approach.
GETTING TO THE TABLE
“Too Far Apart.” If you were to ask me for the main reason why people are reluctant to mediate, it would be the perception that the parties are “too far apart.” Or, “It would be a waste of time because the other side is so unreasonable.”
Whenever I hear these common refrains I try to point out that they are the very reasons why mediation is indicated. If the two sides were already close, then they would probably be able to settle the case on their own. It is precisely because they are so polarized that they need the intervention of a mediator.
Stories abound of cases that were thought to be hopeless but that still settled at mediation. Here is a lawyer’s comment that I read recently: “The parties have been in litigation with each other for years. All prior attempts at mediation had failed. In light of this unfortunate situation, I held little hope that mediation would work. I have rarely been so happy to have been so wrong.”
In most of the cases that I mediate, we start the day with the two sides at opposite ends of the spectrum. Opinions about responsibility seem to be diametrically opposed. When numbers are put on the table, the initial offer sounds like a token response to the demand. But the trick is to keep talking because the longer that the parties talk the closer they will usually get to a solution.
“Just Do It.” Mediators are not miracle workers. The secret of their success is knowing that the parties are never too far apart to explore settlement. Many disagreements are grounded in emotion rather than reason, and it takes time for the emotions to subside. Once these obstacles are overcome, resolution can usually follow. So to parties who are reluctant to come to the table, my advice would be “Just do it.”