Negotiation Tactics in Mediation

negotiation tactics in mediation
chapter four
Negotiation Tactics in
   art in and of itself. People in all walks
of life not just lawyers must negotiate. Negotiation
is an important element of a lawyer’s practice.
e one aim of mediation is to resolve issues, and
resolution usually requires negotiation. It works best
where one party cannot beat down the opposition with
the pure force of overwhelming facts or argument. In liti-
gation, it often takes negotiation. Mediation is one pro-
cess to encourage such negotiation.
Mediation can be voluntary or mandatory. It can be
constrained by a court-appointed mediator or open to a
mediator chosen by the parties. It can take a few hours or
several days. ere are several oer-counteroer models
just as there are several models that encourage or discour-
age face-to-face discussions.
It used to be that lawyers learned their negotiation
skills only from experience in their law practice. Fortunat-
ely, law schools have recognized that these skills are vitally
important to the practising lawyer. ey teach negotia-
tion skills as a “hands on” type of seminar. Like advocacy
skills, negotiation skills require nesse, real-time decision
   
making, and the ability to listen. ey also require prac-
tise, practise, and more practise.
Like advocacy skills, negotiation skills can be taught.
e purpose of this chapter is to approach negotiation
from the point of view of mediation. is handbook does
not provide a comprehensive set of negotiation tactics,
strategies, or principles, but it does provide several types
of tactics employed at mediation, with thoughts about
their usage.
   for people to adjust their negotiation tac-
tics to meet a deadline. ere are war stories told about
negotiations that go down to the wire, with one party
“playing the clock.
What is a deadline?
  , this is one of the elements of the media-
tion process. In open-ended mediation, a mediator has an
innite amount of time to work the parties. is diers
from the type of mediation where an event will occur if
the parties fail to settle — for example, the trial may start
the day after scheduled mediation but trial dates are
just one example. e parties must settle before the trial
begins, or the trial judge takes over. In such cases, fail-
ure to agree leads to a known outcome — a trial. (Another
example is that one party will hire another contractor to
perform the work, or will declare force majeur.)
negotiation tactics in mediation
What is the outcome of a failure to settle?
 “”  has two cars hurtling towards each
other, with a crash being the known result of the failure
of one or both players to veer from the path. In a negotia-
tion, the “crash” is the failure to settle or agree.
In mediation, the “outcome” that will occur should
the mediation fail is a continuation of litigation. is
outcome may favour one of the parties. For example, one
party may have deeper pockets, or perhaps one party is
less stressed by the litigation. In these cases, one party
wants to settle more than the other. In these cases, the
likelihood of success is a factor that inuences the parties,
but it is not the only one. Cost, eort, stress, or other
possible outcomes all play their part in assessing the value
of that outcome.
How can one party use the deadline?
   is aware that the other party simply has to
settle, then this is an important piece of information. e
party with a less urgent requirement to settle can use the
clock. With small, incremental changes to a negotiating
position, or even by maintaining a strict hardline pos-
ition, the party with less urgency can increase the pressure
on the other party. However, this comes at a risk the
party with a greater need to settle may feel the manipula-
tion, and the reaction may not be predictable.
is tactic, known as “playing the clock,” is one that
depends upon an ability to accurately predict the other
party’s reaction. It compounds two guesses: the rst is the
other party’s urgency to settle, and the second is the reac-
tion to such tactics in the rst place.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT