Published January 2018
By Bruce A. Blitman
During the past 30 years, mediation has become the most popular Alternative Dispute Resolution (ADR) process for resolving disputes. Lawyers, insurance companies, risk managers, and corporate legal departments use mediation frequently to resolve claims and lawsuits.
Mediation is an “assisted negotiation” in which the parties and their counsel involved in a dispute sit down with a neutral, impartial person called a mediator to reach a mutually acceptable agreement. The mediator works with the parties and counsel to help them fashion their own acceptable solution to their dispute. Negotiating is an important part of every attorney’s career. Whether you are dealing with opposing counsel, insurance adjusters, clients, partners, or staff, you are still constantly negotiating. The quality and success of your practice can be directly affected by your ability (or inability) to effectively conduct negotiations.
During the past 28 years, I have been privileged to mediate thousands of disputes. Many have settled due to the exceptional negotiating skills of the participants. Unfortunately, others have not been resolved because of the participants’ ineffective negotiating skills. I hope that the following ten tips will help you and your clients hone your negotiating skills and enable you to get the most out of your mediation experiences:
- Know what you want. Your clients cannot get what they want from others if you do not know what they want for themselves. First, establish a specific goal for negotiation. Consider what it will take to satisfy your client’s interests, needs, and objectives. If you are representing a client on a contingent fee basis, wouldn’t it be helpful to know as soon as possible that your client only wants an apology, rather than money damages?
- Develop a game plan. Once you know what your clients want, establish a negotiating strategy to achieve their objectives. Before you present your first offer, consider where you and your clients want to start and where you want to finish. Give yourselves some room in which to move.
- Know what the other party needs. It takes two to tango – and to negotiate. To reach an agreement, all parties must feel that some, if not all, of their interests have been satisfied. Your negotiating partner also has motivations and concerns. Ask open-ended questions to gather information and to understand the other side’s positions and perspectives.
- Be an empathetic listener. There are hundreds of courses about public speaking, but very few of them teach us how to listen. Attentive listening enables us to better understand the motivations of others. Make eye contact when someone else is speaking. Pay attention to the words and language that they are using. At one of my mediation training courses, a student once told me that her child would admonish her by saying, “Mommy, listen to me with your face!” when she was distracted and not paying attention to her. What wonderful advice for us all.
- Attack the problem, not the people. Focus on finding solutions to your shared problems. Screaming at the other party may let off steam, but it is not conducive to effective joint problem-solving. Be courteous and tactful.
- Treat the other side as your ally, not your enemy. Your negotiating partners at the mediation may have to persuade others in their organization to agree to your offer. As your friends, they can sell your proposal; as your enemies, they can sink it.
- Educate, don’t intimidate. Be prepared to explain, document, and justify to your negotiating partners why they would be well-advised to accept your client’s proposal. Help them understand your client’s position.
- Be patient and persistent. Don’t be angry or insulted if the first offer you receive is not what you and your client hoped it would be. Treat this proposal as the first of several in the negotiating process. Slow but steady movement creates momentum, which can lead you down the road to resolution and agreement.
- Consider the consequences of no agreement. Think about what could happen – both good and bad – if your clients are unable to agree. Can they afford to “walk away” from the table, or are they desperate to make a deal now?
- Be flexible and creative. The Rolling Stone’s frontman, Mick Jagger, made the phrase “You can’t always get what you want” famous. In negotiations, this is often true. Always have a fall-back position – that is, an alternative that satisfies your clients and the other parties enough to make a deal. Be imaginative and “You just might get what you need.”