When I teach mediation, one of the definitions we discuss is how mediation is a guided negotiation. Participants need to be able to negotiate, yet we live in a society where we rarely negotiate. And when we do (buying a car or house), we generally hate it.
The ADR Times recently published an article about negotiation and it’s worth reviewing that if you’re heading into a mediation or negotiation. Here are the highlights:
1. Always prepare for a negotiation or mediation
A big frustration to me as a mediator is when a participant in a mediation is not prepared. They don’t know case facts. And worse, they don’t know what they want out of the negotiation or mediation. It is hard to arrive at a destination if you don’t know where that is. (And it is unlikely you will get everything you want.) These are things that parties should discuss internally and prepare for prior to the negotiation.
2. Focus on interests, not positions
A position is a statement akin to “I want X” generally with no reasoning. An interest is a need or a why you want something. Positions are often mutually exclusive. Interests can be satisfied in a way that both sides can be happy or certainly live with. Focus on interests.
3. Understand what will happen if the negotiation or mediation fails
This is where you would head to next upon a failure of the mediation or negotiation. Is it a trial/litigation? An arbitration? Is the relationship ruined where future transactions will be impinged? Do costs escalate, such as legal expenses? What are the best and worst outcomes of these?
4. You can’t shortcut the process
I have some mediations where participants try to head right for the bottom line to get things over. This is a generally bad idea. Negotiation and mediation are about building or rebuilding relationships. That doesn’t happen when a party is “bottom lined” right out of the gate. “Take it or leave it” stances should wait. Negotiations are like a choreographed dance. The other party is expecting a certain process. Circumventing that process — especially to save time — can lead to failure.
5. Aim high but don’t be unreasonable
A mental visual I like to use is “hang the meat low enough for the dog to jump at it.” In any negotiation, if your counterparty loses interest because they think you are being unreasonable, they will get angry and leave. This often leaves things worse off than before the negotiation. So don’t be unreasonable. On the other hand, don’t be too generous, especially early.
6. Be curious and listen
Most people are not listening. They are thinking about how to respond. This is a bad idea. The other side is trying to tell you something. Listen. Be open-minded. Try to be curious about the other side. It will be helpful to you in the negotiation.
7. Model the behavior you want others to exhibit
This is the proverbial golden rule: Do unto others what you want to be done to you. Don’t act mean, uncivil, or aggressive. That will get you the same conduct back. It is harder to be mean to someone when they are nice to you.
If you have a negotiation that is stuck, consider mediation to help bridge the gaps. Contact me to find out more.