Negotiating the resolution of a matter at mediation isn’t always easy.  There is so much at play – different views of the facts; conflict between the parties; resentment; anger; hurt and often the feeling that nobody is really going to “win”. 

There is no magic answer to what makes a successful negotiation, but there are three important stages that need to take place for the process to be effective.  These need to be completed sequentially, as it’s hard to progress from one stage to the other if each is not properly completed.

Stage 1 – Preparation

Although it seems like the negotiations start at the mediation, the process actually starts well before that.  Preparation is key and involves building a relationship with your client and gathering evidence. 

To negotiate properly for your client, it is important to build a good relationship with them.  If your client does not trust you and doesn’t feel that you understand their position, they are unlikely to reveal all relevant information to you, or be persuaded by anything you say. Complete transparency and understanding between you and your client is fundamental to negotiating well for your client.

People have a fundamental need to be heard and by actively listening to your client and speaking “with them” and not “at them”, they are more likely to provide you with the information and evidence you need.  When speaking with your client, really listen to them and ask questions that demonstrate your interest in understanding their view – use more “how” and “what” questions rather than accusatory “why” questions.  For example “How would a warning sign have changed Mr X’s behaviour?”  rather than “Why didn’t Mr X look where he was going?”.

Once you have built a good relationship with your client and have earned some trust, gathering the right information should be easier.  Before any negotiations can take place,  ensure that you have and understand all relevant information relating to both you and your opponent. Consider:

  • Do you have all the factual information and evidence relevant to both liability and quantum?
  • Do you understand your opponent’s evidence on liability and quantum?
  • What does your client want to achieve from the mediation? Is the motivation financial? Do they want an apology?
  • Have you developed rapport with your client and gained their trust?
  • Do you have a collaborative relationship with your opponent, or is it characterised by adversarial posturing?

After you have built a relationship with your client and ensured you have all the evidence, you can then move to stage two.

Stage 2 – Devise a Strategy

This involves taking what you’ve learned and crafting your negotiations accordingly. 

Every human decision involves balancing perceived losses (or risks) and gains (or opportunities).  Most matters will settle before hearing as people are fundamentally averse to loss and will seek an outcome that provides some certainty.  In preparing a mediation strategy, it’s important to give some thought to what your opponent’s feared loss is, and how you can present an argument that will help them avoid that loss.

It’s also really important to understand and respond to the emotional elements of a claim.  This is particularly so when drafting a position paper and making an opening statement.  In stage one, you should have learned some key emotional drivers to the conflict, most commonly grief, anger and fear.  These emotions not only exist in cases involving abuse, death and catastrophic injury, but equally in business, employment and property damage disputes.  If you don’t deal with these emotions before and during negotiations, then rational, logical decision making is unlikely to take place (see my last two blogs on the Amygdala Hijack)

By understanding emotions and building on the information gathered in stage one through interactions with your opponent and during the negotiation process, you can learn what loss looks like for your opponent and utilise this to your advantage.  For example, you could focus on the loss to force acceptance of your offer or you could reframe your offer in a way that emphasises your opponent’s gain or opportunity.  Just don’t assume that your opponent’s perceived loss is simply having a judgement and costs order entered against them.  

When devising a strategy, it’s important to consider these factors:

  • The restorative effect of receiving an apology of direct personal response.
  • The impact that being treated a certain way may have on a person’s sense of fairness.
  • Any reputational loss by having a public hearing and a published judgement.
  • The benefit of accessing a smaller settlement sum now rather than having a potentially larger sum some time in the unknown future.

Being aware of, understanding and responding to the emotional elements of a claim and devising a strategy that will address the perceived loss and gains of your opponent will be key to a successful negotiation.  

Stage 3 – Negotiate an Agreement

If stages one and two are completed well, implementing this stage at the mediation should be relatively simple.  It usually consists of counter offers until both parties are within their “settlement range” and settlement usually occurs.

Sometimes the parties reach an impasse and it seems that successful negotiations won’t be possible.  This is when it’s important to bring your client back to what they wanted to achieve and what their risks are.  You can help them to consider how the offer on the table compares to their best alternative to a negotiated agreement, take a break to reassess or move on to another issue to get conversations restarted.

Finally, use your mediator to assist throughout the process.  A good mediator will develop a rapport with the parties and gain their trust which will allow a shift in perspective towards compromise. If you would like to discuss the skills and approach that I bring to a mediation, please contact me on 0412 048 456 or by email on jsomerville@r3resolutions.com.au.

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