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Preparation for Mediation: Anticipate The Other Side’s Negotiation Strategies

From the blog of Nancy Hudgins

This is the fifteenth in a series of posts on preparing for mediation.

During the heat of battle, it’s sometimes difficult to defend against the other side’s negotiation tactics. Anticipating their strategies in advance can be useful. Hey, if it was good enough for Bill Walsh….

Here are four suggestions.

1. Be prepared. Do your homework about the other party and lawyer as well as historical settlement values for your type of case and venue. Think through the other side’s likely negotiation strategies. Be rigorous in your approach to mediation.

1(a). (A bonus suggestion.) Act prepared. All of us get busy. If you haven’t had
time to thoroughly prepare, at least act as if you are prepared. Malhotra and Bazerman suggest that not only will you gain respect, you will discourage the other side from lying out of fear of being found out.

2. Prepare to answer difficult questions. Take the other side’s view and figure out
what the most difficult questions would be for you to answer. Then work on reasonable responses. Why should preparing for negotiation be any different than preparing for oral argument?

3. Prepare to re-frame. It’s an election year, and re-framing is big. It also works in
negotiation. If the other side is being positional, change the conversation from positions to problem solving. Engage the other side in thinking with you about creative ways to solve your joint problem (how to settle the case). Also consider the gain/loss reframe. We are more likely to make concessions when allocating gains than losses. Change the frame of loss into the frame of gain and the other side will be more willing to negotiate.

4. Prepare for emotions. When strong negative emotions come up (and they will)
neutralize them by acknowledging them and using strategies to get your head clear. Perhaps you’re thinking I’m talking about your client, and I am. But I’m also talking about you. Looking back, it’s been rare that as an advocate, I have been cool, unruffled and rational throughout every negotiation. Tell yourself ahead of time that you are not going to react in anger. Give yourself permission to take a break or walk around the block.


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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