If your plan is “let’s just see what happens”, you’re not negotiating. You’re just leaving it to chance.
After 25 years as a litigator (and now 6 years in the mediator’s chair), I’ve noticed a pattern: the best outcomes aren’t won in the room; they start long before it.
Most lawyers treat negotiation like a courtroom performance—show up, make compelling arguments, exchange offers, and hope logic prevails. Yep, I was one of those lawyers too. But now I’ve come to see that effective negotiation operates much more like mediation: it’s a structured process where understanding precedes persuasion, and preparation determines outcome.
The Three-Stage Negotiation Framework: why preparation and curiosity determine success
Stage 1: Strategic Preparation (The Foundation)
This is more than ‘know your client’s bottom line.’ You need to know what really matters to them. Don’t assume it’s just the money. Effective preparation requires understanding the human elements driving the dispute:
Your client’s true motivations: What do they really need to feel this matter is resolved? Often, it’s not just money—it might be an acknowledgment, a process change, or simply the ability to move forward. I’ve seen cases where understanding a plaintiff’s need for validation was more valuable than any monetary offer.
The other party’s constraints: What pressures are they under? Time constraints, reputational concerns, or broader business considerations may outweigh the legal merits. In professional indemnity claims, for example, understanding an insured’s or insurer’s appetite for negative publicity can be as important as understanding their reserve position.
The negotiation environment: Who will be in the room? What’s the history between the parties? Sometimes, the most productive negotiations occur when key decision-makers are absent, thereby removing the pressure to perform. Sometimes, the key decision-makers need to be present (or at least immediately accessible) to grasp the opportunity for resolution, which may otherwise be lost if instructions are delayed.
Stage 2: Intentional Curiosity (The Process)
Once you’re in the room, the goal should shift from advocacy to facilitation—something that’s often easier said than done when you’re also representing your client’s interests:
Listen for interests, not just positions: When someone says “that’s completely unacceptable,” they’re giving you information about their constraints, not just their stance. Ask why it’s unacceptable—you might discover flexibility you didn’t know existed. This is where a skilled mediator can be invaluable, asking the probing questions that advocates might hesitate to ask directly.
Read the room dynamically: Body language and non-verbal messages tell you when to push and when to pause. If opposing counsel is getting instructions via frantic text messages, you know their client is engaged. If they’re checking emails or discussing their recent holiday, you may need to create some urgency or draw them back into the substance of the dispute. A mediator can often pick up on these dynamics more objectively than parties who are focused on their own positions.
Manage the emotional temperature: Negotiation often becomes positional when emotions run high. Sometimes, the most productive thing you can do is acknowledge the frustration and suggest a break, rather than pressing an advantage. However, when you’re wearing your advocate hat, it can be difficult to step back and facilitate—this is precisely when having a mediator with good emotional intelligence managing the process becomes crucial.
Stage 3: Strategic Implementation (The Closure)
The settlement doesn’t end when people agree. It ends when everyone knows what they’ve agreed to, what happens next, and who will explain it to stakeholders. This is where many negotiations fail—and where the absence of a mediator is often most keenly felt:
Document understanding, not just outcomes: Be explicit about what each party is giving up and what they’re gaining. This prevents post-negotiation disputes about intent. When you’re representing one side, there’s always a risk that your recap of the agreement will be seen as biased. A mediator can help ensure both parties have genuinely understood and accepted the same terms.
Address Implementation: Who Does What, and by When? What happens if circumstances change? The best negotiated settlement is worthless if it can’t be implemented or it falls over because of a preliminary step, such as getting Court approval or having a clear understanding of the terms of the Deed before the negotiation concludes. Details such as these are often overlooked when parties are focused on the settlement itself. A mediator, who isn’t invested in either party’s position, can assist in ensuring any settlement reached is workable.
Plan for communication: How will this resolution be explained to stakeholders? Sometimes, the settlement terms matter less than how they can be positioned. Again, a mediator can help frame final offers in ways that minimise the chance of either party disengaging or allow both parties to “save face”.
What Makes the Difference
The most effective negotiators I’ve worked with share certain characteristics: they slow down when others speed up, they ask questions when others make statements, they know when to let silence do the talking, and they focus on creating value rather than claiming it.
They also understand that negotiation isn’t a zero-sum game. In dispute resolution, the real victory often isn’t about who “wins”—it’s about creating an outcome that allows both parties to move forward constructively.
However, there’s an inherent tension in direct negotiation: you’re simultaneously trying to advocate for your client and facilitate a fair process. This dual role can limit your effectiveness, particularly in emotionally charged disputes where parties struggle to hear each other.
This is why mediation can be so powerful. A skilled mediator doesn’t just manage the process—they can ask the difficult questions, test assumptions, and help parties explore options that might not emerge in direct negotiation. They can also focus entirely on stages 2 and 3 without the constraint of having to protect the interests of one party.
The framework above isn’t just theory. It’s what I’ve seen work repeatedly in complex disputes where relationships and reputations are at stake—whether in direct negotiations or mediated settlement conferences.