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Negotiation: The Disconnect

From the blog of Nancy Hudgins

I’m seeing a disconnect between what’s being taught to current law students about mediation and what the best negotiation professors are advocating versus what’s actually taking place in front of me in many mediations.

Current teaching. Last Spring, the ABA’s Dispute Resolution Committee held a mediation competition for law students. (Quinnipiac University School of Law’s team won, which I wrote about here.) The ABA’s scoring system gave the highest marks for demonstration of the following skills:

1. Encouraging clients to speak during the mediation
2. Establishing a problem-solving relationship with the other side, if possible
3. Recognizing the other side’s interests and trying to satisfy them when possible, given their client’s interests
4. Taking initiative to convert the other team into problem-solvers
5. Generating a range of legal and non-legal options to meet client’s interests, as well as interests of other side
6. Evaluating and selecting options based on interests as well as objective criteria
7. Actively encouraging development of creative ideas

Current literature. The best negotiation professors also stress these skills:



Positive attitudes

See, Babcock & Laschever, Ask for It; Craver, Effective Legal Negotiation and Settlement; Craver, The Intelligent Negotiator; Fisher, Ury & Patton, Getting to Yes; Fisher & Shapiro, Beyond Reason; Goldberg, Sander, Rogers & Cole, Dispute Resolution; Lax & Sebenius, 3D Negotiation; Malhotra & Bazerman, Negotiation Genius; and, Ury, Getting Past No, to name a few.

Current practice. There are lawyers and clients who use the approaches and skills outlined above. In my experience, however, there are an equal number of lawyers and clients who apparently believe that “hard” bargaining is the best way to negotiate.

What the advocates of collaborative bargaining point out, however, is that even when hard bargaining is effective, often it leaves value on the table that could have been claimed by the negotiator using a hard bargaining approach. Bottom line: the client loses out.

Creating and Claiming Value. As a lawyer, I want to claim as much value for my client as I can. The counter-intuitive part of collaborative bargaining is that while I am claiming more value for my client, I am offering more value to the other side. This is the win-win outcome that is a result.

Let’s use the orange story as an example. (See original post here.) Two sisters are having a dispute over a single orange. Each wants the entire orange. If the lawyer for the older sister asked questions of the younger sister, he might have learned that the younger sister was interested in making orange juice. If the lawyer for the younger sister listened carefully in conversation with the older sister’s lawyer, she might have discerned that the older sister wanted to use the rind of the orange to flavor a cake. At that point, the lawyers could have settled the case without the assistance of a mediator. The settlement agreement would have been written up to give the older sister the rights to the orange rind and the younger sister the rights to the juice.

This is a win-win example. Each sister gets 100% of what she wants. Neither has to “settle” for less.

Impress your client. Be more collaborative throughout discovery. Talk more frequently with the other side. Keep your focus on what your client really wants. Be creative. Create and claim more value for your client and for the other side. End result: your client will be the winner and you will be their go-to lawyer.


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 >

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