December 03, 2014

Negotiation Strategy in Mediation: Mix It Up


As seasoned negotiators, most of us know how to do the classic distributive bargaining to settle a lawsuit. We understand opening offers, brackets and midpoints.  When our matters settle, we don’t think twice about the process because it worked.  But what about when there is an impasse?  That’s when things get interesting, and we need to dig a little deeper to solve the puzzle.

In short, we need to mix it up and negotiate differently – the earlier, the better. Because once we are in a state of anger or frustration, we’re in fight or flight mode, and we can’t think calmly or creatively. The opportunity for a meaningful negotiation is – at least momentarily – gone.

There is much research in the field of neuroscience about how our brains work when we perceive a threat or danger.  And for many of our clients, the underlying facts of the lawsuit – or the lawsuit itself – can be threatening.  This often leads to aggressive behavior, which then spawns negative feedback from the other side, and the parties are in a cycle of conflict thinking.

This is where your negotiation skills are crucial.  Think of negotiation as encompassing both process and content.  Process is the manner in which you interact with the other side – your tone of voice, your empathy for their position… in short, your attitude.  Content, in contrast, is the actual substance of the negotiation – the facts, the monetary numbers, and so forth.

Now, since a negotiation occurs on those two levels, it is possible to show cooperation to the other side through the manner in which you interact with them (process) while simultaneously remaining competitive about the substance of the negotiation (content).  In fact, if you show cooperation in your manner with the other side, they will likely be less reactive to you when you bargain competitively.

The “New” Joint Session

This leads to a somewhat controversial topic:  the joint session.  It has been out of style over the past few years.  But I’d like to reframe it and have us approach it with a new mindset.  When we approach the joint session with a calm, problem-solving state of mind, positive things can happen, and settlements can be reached often more quickly and with more client satisfaction.  Not all the time, but often.

When you interact with the other side with this new frame of mind, it’s easier to have a meeting with them without the alienation and stress that the adversarial opening joint session can sometimes create.  The purpose of the meeting can be informal; such as a “meet and greet” session where people simply shake hands.  This alone can help relax people’s states of mind.  Or the parties can have a mini-joint session to problem-solve a specific issue.  This can be helpful in showing that both sides are trying to work together to reach an agreement, even if they disagree on many issues.  For example, mini-joint sessions can be used to:

1. Brainstorm possible accommodations for an employee with a disability;
2. Explore details of a dissolution of a business partnership;
3. Brainstorm specific needs of a party’s lifetime medical plan;
4. Explore ways to structure the distribution of an estate; or
5. Explore possible remediation actions to clean up contaminated  property.

I’ve worked with lawyers who are skilled at showing empathy to the other side in mediation, and by doing so, the other side easily reciprocates and truly listens to their own client’s position. This approach changes the cycle of conflict thinking to one of collaborative dialogue, which, for some parties, is a necessary step toward settlement.  To read an example of how empathic listening can promote settlement and to learn the steps of cooperative negotiation, visit

As mediated settlements become more prevalent, lawyers are becoming more strategic about when to assume competitive and cooperative negotiation styles.  By combining both styles to your negotiating arsenal – and knowing when to employ these techniques in mediation – you will often produce optimal outcomes and satisfied clients.

Filed Under: Negotiation

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