Negotiation News: Volume 6, Issue 3
Are You Ready?
You have read your case file and are familiar with the facts. The depositions went well and you have produced what you need to and completed written discovery. The expert discovery hasn’t yet been completed, but the time is right in the case to take a run at mediation. You know the case well, so what else is there?
You may find yourself having factual command over the case, but are you, in fact, ready to negotiate? Have you really mapped out the settlement potential (and process) involved in resolving your case?
In Are You Ready To Negotiate? (Harvard Project on Negotiation, August 1, 2017), the authors suggest three key assessments that should be made in preparing for negotiations.
First, re-assess your assumptions about the case or claim. Is this really a slam dunk that the defense needs to pay? Is this really a nuisance value case in which the plaintiff should be happy with a cost waiver? Often times hard line, fixed positions will result in an early end to negotiations when a perfectly acceptable solution is attainable, if the sides only listened and understood the opposing parties’ true interest in resolution.
Conversely, you might feel that your position is too weak and begin negotiations with too low of a demand or too high of an offer. Some refer to this as “leaving money on the table”, but I prefer to refer to it as “leaving strength on the table.” This is a fine balance that can best be achieved by looking at the dispute from all sides.
So remember to consider not only your own positions but your own interests and the interests of the other side. Think about a path through negotiation that addresses them if not through the exchange of money, then through other means.
Second, “set the table.” I find in my practice that time is well spent before the mediation asking hard questions (and some easy ones like “have you ever responded to the other side’s demand?”) that help counsel and the parties get in the mind-set of negotiating even before we meet for mediation. It is far easier for everyone to start the mediation at point B or C rather than spending undue time at point A.
Third, create value. Short personal story: While I love my wife dearly, after 24 years of marriage, I do recall a time that we really blew it in a negotiation. We were newlyweds buying our first house. The realtor knew the rule of “three” (wow them with the third house you show them), and used it on us beautifully. When we entered the front door of the third house, my wife exclaimed “This is IT! Honey this is the one!” It was also the most expensive for us, but we had just let the other side in on our preference, which led to them maintaining a rather firm position on their price. This is a rather elementary example of limiting our alternatives. To properly explore the real selling price, we should have presented similar alternative listings on which we were ready to make offers.
In the dispute resolution arena, this is best illustrated by BATNA (Best Alternative To Negotiated Agreement, Getting Past No, (William Ury, Bantam Books, 1993). Is the alternative to a negotiated agreement beginning a lawsuit? If so, consider bringing a sample of the complaint to the negotiation. Is the alternative proceeding to trial? Consider sharing trial documents to show the degree of your preparation. Sending a vague communication of “oh well – we’ll try the case then,” while perfectly acceptable, is non-specific and pedestrian. Consider showing that you are not only “going to trial,” but are ready to go to trial, and are specific in your preparation. The strength of, and honest willingness to use, BATNA will likely result in the other side taking the consequences of ending negotiations more seriously, and think twice about ending negotiations.
The takeaway: Though people have differing motivations to negotiate, most parties who attend mediation have a general desire to resolve their cases and disputes. Going into a mediation with an “I’ll show them” mentality can be overcome by a sincere desire to negotiate and thoughtful look at the interests of all sides. Having an effective alternative to negotiation will likely result in more satisfying and productive negotiations and settlements.
I hope you found this newsletter useful and helpful in your preparation for mediation. I look forward to working with you and helping you to resolve your cases and disputes.
All the best, and I look forward to working with you soon!
Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. He can be reached via telephone at 818-616-8500, at www.judgemediation.com or via email at [email protected].