Every attorney in a mediation setting would like to be an effective negotiator. Unfortunately, many are not particularly skilled in the art of negotiation, especially if they are burdened with one or more “old wives’ tales” about what makes a good negotiator. I say “burdened” because failing to recognize these myths inhibits one’s ability to truly become an effective mediation advocate. Here are three common myths concerning negotiation behavior:
“Good Negotiators are Born, Not Made”
There are few “natural’ negotiators. Effective negotiation is the product of study, preparation and practice. Most attorneys, unfortunately, have never had formalized training in negotiations, a shortfall that has just recently been addressed in law schools throughout the country. The Harvard Program On Negotiation offers a variety of short courses in negotiation skill building, a terrific experience. The body of literature that has been developed in the field is evidence of the depth of intellectual challenge that faces the serious negotiation student. To operate on instinct alone can represent a major disadvantage when facing an opponent who has had training and clinical experience with experts.
“Experience Is the Best Teacher”
Although certainly helpful, experience alone may not be particularly valid or helpful without honest, critical feedback. Also, our memories tend to be selective; many will remember their successes and suppress their failures. Experience builds confidence, which is beneficial, but unwarranted confidence can lead to taking risks that are not in the best interests of the client. Better to base that confidence upon an objective, sober analysis of the litigation risk and alternatives to a negotiated settlement in advance of the mediation. Let the confidence that comes with experience be one of many other tools in your arsenal.
“Always Rely on Intuition”
Many attorneys choose not to prepare for the mediation, and simply “fly by the seat of their pants.” The approach is frequently explained, often with pride, as being dependent on one’s “gut feeling” or “intuition.” This is in sharp contrast to taking a proactive approach to carefully prepare for the negotiation, taking stock of the personalities to be encountered, prior relationships among parties and others, the fundamental interests of the parties, and a host of other considerations. This type of study, performed in advance, together with a solid litigation risk analysis based on reality, not wishful thinking or simple bravado, has, in my experience, almost always resulted in a superior outcome on behalf of the client. As is the case with experience, put intuition into perspective, using it to test, but not determine, your negotiating behaviors.
John Upchurch is a principal mediator at the firm of Upchurch, Watson, White and Max. For more information visit John Upchurch‘s biography!