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JAMS ADR Insights

Alternative Dispute Resolution Mediation

Developmental Negotiation: Preliminary Stage

by Alexander S. Polsky, Esq.

Developmental negotiation involves a plan and execution of the development of all five stages to maximize the likelihood of a beneficial outcome.  The five stages are preliminary, preparation, information, negotiation and closing.

Let’s take a closer look at the first stage, preliminary.  In real time, your client has met with you and has been signed up, and you are considering approaches.  When signing the client, you developed a thorough understanding of the client’s needs, interests and capacity for risk, both financially and emotionally.  Now you have initial decisions and recommendations to make.

Should there be an initial and early effort at negotiation?

There are many interests to be balanced here.  One is whether protracted litigation will adversely impact the client’s reputation, business interests and/or ability to fund the case if you are not trying to negotiate.

Another centers on your assessment of the quality of the case and client.  Imagine a situation where the client does not present well, has a greater than 50 percent chance of an unsatisfactory outcome and cannot otherwise afford to litigate.  This client needs an early resolution process, perhaps pre-suit.

Let’s examine a claim for sexual harassment, hostile workplace and wrongful termination.  The claimant is a 48-year-old who has been with the company for 10 years; the respondent is a large department store chain.  You represent claimant.  This person is angry and has a bent for vengeance and for creating procedural changes to better address complaints.  When you analyze the interests of the respondent, what do you consider as possible motivating factors for early resolution?

  • The impact of protracted discovery will be disruptive to the business;
  • The impact of protracted discovery could bring out other complaints;
  • A favorable judgment could bring out even more claims;
  • Insurance considerations.
To continue reading Mr. Polsky’s discussion on the prelimary stage of mediation for successful negotiators, please read the full article from by clicking here.

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