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5 Ways To Doom A Mediation or Negotiation

Posted by attorney Ben Cunningham

In addition to the usual advice about preparing well for a mediation or negotiation, the following are observations from this mediator to outline a few of the most common mistakes made in mediations that can doom a successful outcome of a fair and rational resolution. It is important to remember that unlike the zero-sum warfare of a courthouse trial, mediation/negotiation is a process of addressing the interests of the parties in a manner that leads to a collaborative effort to reach a negotiated resolution that addresses for the parties as many of their interests as possible in the global context of the dispute and alternatives to a negotiated settlement. 5 Ways To Doom a Mediation:

  1. Hostility and Lack of Respect: You may have visceral or emotional feelings about the opposing party or counsel. You may believe for whatever reason, valid or not, that they are liars, cheats, imcompetents, wingnuts, or just plain crazy. Of course, the opposition may have a similar impressions of you or your client(s). A mediation/negotiation is not a street fight: If you want to destroy any opportunity for a mutually agreed upon settlement of your dispute, treat the other side with disdain, disrespect, or hositility. The Golden Rule applies.

  2. Confrontation & Agression: A mediation or other negotiation is not a platform for confrontaton and aggression. Negotiation is a process of collaboration in an effort to fashion a mutually agreeable resolution that provides finality to a dispute. If you want to ensure that your negotiation will fail, treat the process as a forum to attack the opposing party(ies) or counsel, and further, make sure that you don't send any signals or express any interest in collaboratively exploring what the opponents need and how you might work with them to address achieving some of their reasonable goals.

  3. Winning and Losing: Winning at the court house means you have convinced a judge and jury that your position is correct and that your opposition "loses". In the context of a mediation or negotiation, the definition of "winning" is quite different: it means that you have negotiated well enough (and collaboratively enough) to address enough of your client's critical interests so that an agreement can be entered into that is sufficient benefit to your client in light of the uncertainties and minefields of moving forward to trial and potential appeals (and, in the case of a pre-litigation/non-litigation matter sufficient to address the benefits of resolving the dispute to benefit future personal or business interaction, or the threat of litigation, etc.): If you want to destroy the opportunity for a collaboratively negotiated resolution of a dispute has benefits to your client, approach the mediation/negotiation with the mindset of "never giving an inch!", and that the only terms of "settlement" is for the opponent to fully capitulate, lie down on the floor like a whipped dog and force the opponent into giving you everything YOU want and demand. An appealing vision to some, perhaps, but a bit unrealistic.

  4. Making it "Personal": Another sure-fire way to drive a mediation or negotiation toward disaster is to devote all your time and energies to focusing on the personalities of the opponents rather than the issues involved in the dispute. However, should you desire to optimize opportunites for a successful negotiation, focus on the interests of not only your own client(s), but the other side's interests as well. Keep emotions out of the equation to the extent possible; learn to monitor yourself (and your client) so that you can assist in "ratcheting down" emotions, hostilities, and personal attacks, all of which detracts from (usually dooms) any kind of collaborative business, legal or rational solution to the disputes and disagreements.

  5. Turning Everything Into an Argument: To drive the nail in the coffin of a potentially valuable negotiation, focus on nothing but an unceasing and bombastic assertion and defense of your legal or factual positions and adversarial arguments. Query: How many times in the course of a negotiation--think of mediation as the forum for looking for diplomatic solutions to prevent or end a war-- have you ever been successful in having the "opponent" capitulate and accept your version of the law and facts? Another query: If you have a case that is an absolute slam dunk winner and there is no possibility that you will not succeed in "winning" the case at trial and get all that you want, including attorney's fees, why bother to negotiate? (In over twenty years of practicing law and litigating, I have run into only a couple of these kinds of slam-dunk cases, and they were so slam dunk that "negotiations" were minimal to avoid trial).

The process of negotiation requires that every side in the dispute clearly understand each other's legal and factual view of the world, but the process does not contemplate that any side will accept the other's view. It is important in the sense of analyzing the strength, weaknesses, and risks associated with the various legal and factual views, but the process does not involve consensus about the views, only consensus about whether at the "end of the day" the parties have addressed as many of their own interests as possible in light of the differences of opinions, risk, cost, and other factors that may be extant should the negotiation/mediation be unsuccessful.

At the end of that proverbial day, the best resolution to a dispute is an agreement that the settling parties can look at and say (sometimes with great enthusiasm, sometimes with lesser): "This makes sense for me. It's a resolution I can live with."

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