From the blog of Nancy Hudgins
(This is the fourteenth in a series of posts on preparing for mediation.)
As a lawyer, I used to tell myself that negotiation was intuitive. Thus seat-of-my-pants decision-making in mediation made perfect sense. That was then and this is now.
Having a game plan, scripting your moves and considering a variety of negotiation strategies in advance not only gets you in the right frame of mind (I’m ready!) it just may give your clients a better chance of claiming all of the value of the case (or alternately, paying as little as possible).
Books have been written on this subject. (See, e.g., Craver, The Intelligent Negotiator.) Thanks to my negotiation professor, Charles B. Craver, who now teaches at The George Washington University School of Law, I have four suggestions.
Aspire higher. Studies show that lawyers who go into a negotiation aspiring to the highest outcome do better than those who do not. Determine a reasonable value for your aspiration. Add 20%. Then convince yourself of its reasonableness. Just as you convince yourself of the flawlessness of your motions before hearings and the righteousness of your client’s case before trial, persuading yourself that you have a reasonable settlement goal will help you persuade the other side.
Decide what to disclose. It may be a small point. Any disclosure will make you seem more credible and more reasonable. It may be a strategic larger point. Thinking it through ahead of time will keep you from giving away the farm.
Decide what to ask. Be curious and ask the other side why they view the problematic issue as they do. Also ask, why not? And, if you’re trying to create value, ask what if?
You may gain insights that will help you settle the case.
Decide what to concede. Concessions beget concessions. Use the Rule of Reciprocity for small points. (See my earlier post.) Use principled rationales for larger points. State them objectively and ask for a concession in return. Use contingent concessions for dicey points. Especially if there is uncertainty surrounding an issue, a contingent concession can be useful.
Your mediation is coming up. Time to get your ducks in a row.
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