Managing Your Constituents in Mediation
Nearly a decade ago, I heard Dennis Ross, the senior mediator appointed by President Clinton, speak at an Association of Business Trial Lawyers program where he reflected on his role as lead mediator of the Israeli and Palestinian dispute. Ambassador Ross shared his most significant learning opportunity from the process: He failed to ensure that the representatives from each side - especially Yasser Arafat - had, in fact, been communicating with and obtaining buy-in from his respective constituents. Ambassador Ross believed that this failure to communicate with constituents was the primary reason why the negotiations failed.
The need to communicate with constituents is not only important when mediating large-scale political disputes, but also when mediating our everyday business, organizational, employment and environmental disputes. We have a tendency to think about “managing” the negotiations with the other side, but we often fail to realize that there is an internal negotiation that needs to occur - and occur early- among the people within our own organizations.
Boards of public entities, private corporations, publicly held corporations, schools, legal departments, insurance companies - even family members - are just some of the constituents that often need to be involved in settlement decisions. Lead negotiators need to get their buy-in early in the process and not after a protracted negotiation has occurred.
According to Robert Mnookin of the Program on Negotiation at Harvard Law School, an important conversation to have with your constituents is to identify not only the interests of your side but also of the other side. Understanding the needs of both your side and the other side can generate valuable items to be traded and will help you strategize your negotiation moves. By communicating these issues early and often with your constituents, you are managing expectations and including them in the negotiation process. This will help create the necessary buy-in to reach a final negotiated outcome.