JAMS ADR Insights
Published May 1, 2014
When you’re gearing up for a negotiation, it’s natural to want to focus solely on your client’s interests. After all, it’s what they pay you to do!
But by doing so, you may actually work against your client’s best interest. Developmental negotiation recognizes that focusing only on one’s own interests actually dulls the negotiation process and produces a less-than-satisfactory outcome.
When parties approach mediation or negotiation, each party has needs, some known and some unknown. Proficient negotiators focus not only on the interests of their own side, but also on the interests of the other side. In preparation for the negotiation, these negotiators will actually create interest and action charts to help illustrate the issues and demands that may come into play during discussions with the other party.
What is an Interest? It can be described by single words or phrases, such as “control,” “acknowledgment” or “compensation.”
The skilled negotiator creates a list of the interests of all stakeholders to the negotiation. Then a series of actions that match or address the specific issues is noted. In the context of a catastrophic injury case, “acknowledgment of loss” may be a specific interest of the injured party. An action could be as simple as the expression of regret or recognition of the impact of the event that brought the parties to the table. Soft actions can be given up early to set the tone of the negotiation.
Once the interests and actions are determined, the mediation process can begin.
There are five stages to mediation. Successful negotiators focus on each and every stage. They analyze, review and consider the interests of everyone, including the representatives, families and actual litigants. One by one, they develop the focus and negotiate with a view toward joint gains.
What are the stages?
Preliminary – This stage includes deciding to mediate, approaching the other side(s) and selecting the mediator and the time, place and manner issues predominate this space. When should we mediate: the start of the dispute, pre-suit, post-filing and service, midway into discovery or just before trial? How do we communicate desire without signaling weakness? How do we pick a mediator? Should it be our choice or theirs? Should the mediator possess subject matter expertise or dispute resolution skills? What unique traits and sensitivities should the mediator possess considering the issues, parties and representatives?
Preparation – This is the make-it-or-break-it stage. It is every bit as important as the negotiation itself. In this stage, you prepare yourself, your client, the mediator and the other side for the negotiation. What’s critical here is to analyze the interests of the other side, and actions useful to address those interests, and conduct the same analysis of your client’s interests. This is also the time where special conditions to “the deal” need to be shared with the mediator and other side. Many deals fall below expectations because sometimes litigators try to “win” rather than evaluate common interests, find actions to meet the other side’s interests and focus on their own key points of the deal.
To continue reading Mr. Polsky’s discussion on the stages of mediation for successful negotiators, please read the full article from Law.com by clicking here.
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