Kimberly Sands, a shareholder with Upchurch Watson White & Max, writes about effective negotiation and successfully advocating for parties in a mediation. She's been a civil litigator and has mediated difficult and complex disputes as litigator or mediator for over 30 years. To schedule a mediation with Kimberly, please call her case manager, Cathy McCleary at (800) 863-1462, or visit our online calendar.
Shareholder Kimberly Sands
It’s difficult to reflect back on a contract or transaction that has gone south and not think of what could have been done to prevent this outcome. Hindsight almost always reveals some language or action that could have been different, but looking back rarely contributes to a successful resolution and can in fact impede a satisfactory resolution for all. The following are common mistakes in negotiation which can be opportunities for successful negotiation in mediation:
- Be flexible. The focus should not be on what was desirable when the transaction in dispute took place, but what is desirable now.
- Find value. Mediators are in the best position to explore the value individual parties place on the elements that affect negotiation by asking questions and exploring alternatives, but parties can do so as well. One strategy is to make simultaneous offers involving different elements. The response may yield what is important to another party and what is not. If something is important to one, but not another, value creates trade opportunities that might not otherwise be evident in past dealings. One man’s trash is another man’s treasure.
- Deal with the Emotion. There is always emotion in commercial disputes. It may not always be obvious; power, ego, a win-loss mentality and reputation are not always identified as issues of emotion, but there is no better way to characterize them. Emotion can run extraordinarily high in commercial claims, which can be disconcerting to counsel and mediators trying to negotiate a well-informed and rational outcome. It cannot, however, be ignored. Instead, it needs to be recognized, identified and addressed.
- Knowledge is power. The more you know about your adversaries’ circumstances, the better your position will be in assessing risk and forming strategy. Negotiations can turn on the most extraordinary arguments and strategies if you know what motivates your adversary. Too many negotiators are focused on what they want and need and don’t consider the needs of their adversary and, therefore, how to construct a successful, persuasive strategy to get what they want from their adversary.
- Always, always, always consider early discussions that include as much listening as talking. Misunderstanding, tough talk and win-loss agendas can derail the process. Mediation is a good way to avoid the pitfalls. Even if the dispute does not settle, valuable information can be exchanged that helps to identify issues and possible solutions for the future.