Search Mediators Near You:

Negotiation Mistake 7: Losing the Momentum

From the blog of Nancy Hudgins

(This is the last in a series of 7 Mistakes Really Good Negotiators Make.)

As Yogi Berra famously said, "It ain’t over ’til it’s over." (You can buy his book, containing this and more Yogi-isms, here.)

Let’s assume that you’ve tested the other side and discovered that “No” really does mean “No.” They have stopped short of your settlement range an you’re returning to your office without a settlement. What do you do now?

You could assume that the case will never settle and move on to the next one. Or, you could:

? Recognize the anger and frustration the failure to settle causes

? Take a deep breath and start thinking rationally again

? Act like a fly on the wall and look at the negotiation as a whole

? Use fresh eyes: start from the beginning and re-think the negotiation

? Why did the other side stop?

? Brainstorm: What does the other side need? What can I give the other side that does not cost my client as much as it benefits the opposing party?

? Discuss the negotiation moves with a negotiation consultant, or a colleague or your client

Then, review your BATNA. If you really, really don’t want to try this case, you are going to have to consider a different settlement figure. Be flexible and willing to adjust.

Think of additional information you need or the other side needs to settle the case, and get it.

Even if you get nowhere with all of these approaches, remember, “It ain’t over ‘til it’s over.”

Keep the mediator in the game. Most mediators want to help you resolve cases and will continue to work with you even after the mediation is over. Enlist their help in approaching the other side or considering a different approach. Keep the momentum for settlement going.


Nancy Hudgins

Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class… MORE >

Featured Mediators

View all

Read these next


Business As Usual? Mediation and the Justice System

Like many mediators I am conscious of the risk of overselling. However, in spite of having a reasonably high profile, and even its own chapter in the recent Scottish Civil...

By Charlie Irvine

The Uniform Mediation Act — A Radical Approach to Confidentiality

At its recent meeting in California, the Drafting Committee on the Uniform Mediation Act of the National Conference of Commissioners on Uniform State Laws (NCCUSL), in an apparent attempt to...

By Stephen A. Hochman

Solutions and Future Plans of Mediation as an ADR Method

Mediation in our country is no more a toddler. It has started to have an identity and it is time that we devise a cohesive plan for the growth of...

By Uma Ramanathan

Find a Mediator