Preparing for Mediation and Negotiation
By Lovegrove & Cotton – Construction and Planning Lawyers
“Discourage litigation. Persuade your neighbours to compromise whenever you can” – Abraham Lincoln
Legal representatives and advocates sometimes assume that the client will know what mediation is or how it evolves; that is an assumption rather than a given, so, explain the process and demystify it. There is often a mistaken apprehension that the mediator can force settlement, which is a folly. It is best to advise the client in advance of what to expect and prepare the client on do’s and don’ts. It is also a good idea to hammer home the importance of Alternative Dispute Resolution (‘ADR’), the fact that if the matter does not settle the dispute can take on a life of its own, positions can become entrenched, costs will escalate and the harder it will be to resolve ones’ contested affairs at a later time.
John F Kennedy pretty much said it all when he was quoted as saying ‘let us never negotiate out of fear but let us never fear to negotiate’. The client needs to fear to some degree the consequences of failed negotiations.
It is thus wise to advise the client that one of the key virtues of mediation is that the clients are still effectively in control, they can shape their own settlement and through negotiation drive their destiny. This cannot happen in a full-blown hearing that runs to conclusion – a third party (i.e., a judge) will decide the outcome so the power to resolve the dispute is migrated to the judge.
So, the client is well advised to have regard to the late JFK and:-
- Fear the costs;
- Fear the time loss;
- Fear the repudiation of relationships; and
- Fear the fact that if a matter goes to trial and is reliant upon a judgment, the client may well lose for there are no guarantees in litigation.
Likewise, it is important to impress upon the client that if they want to settle the dispute they may need to compromise. For in the words of Rock and Roll Supremo Mick Jagger “You can’t always get what you want, but if you try sometimes, you might find, you get what you need”.
Compromise is not always about getting what you want; because to settle, you have to concede, which means lose something, and both parties may have to lose something if they want a negotiated outcome, so Jagger’s quote is on message; for that which one needs is not the same as that which one wants. The writer, when explaining to a client that mediated outcomes involve compromise, often says that the ‘win-win’ metaphor for mediation is a bit of a misnomer, and ‘lose the least-lose the least’ is probably more accurate.
For fear of being accused of stating the obvious, be fully on top of the brief. One needs to be candid with the client about the strength and weaknesses of the case and those of the other side before the mediation commences. You need to ensure that the client is able to make informed decisions and provide meaningful instructions. Best to commit that advice to writing a few days ahead of the mediation to allow the client to reflect, deliberate and then in well informed fashion instruct.
In negotiations do not interrupt and listen with intent
When the adversary presents their case do not interrupt them. Listen with intent and take note of the adversary’s key arguments and be alert to weaknesses. There is an old adage that goes “you cannot learn if you are talking; you can only learn if you are listening”. Another metaphor that comes to mind is that we are born with one mouth and two ears; so, do twice as much listening as talking. This is not easy for advocates who are of the view that they are paid to talk, they should also take cognisance of the possibility of being paid to listen too, for it is the listening that will help one craft a well-informed response.
One can learn a great deal about an opponent and their case by listening; the term “powerful listening” was coined to illustrate this. Do not let the client interrupt either. Of course, the client will be encouraged to have their say, but after that, the advocate has to be the consistent mouthpiece. After all, the client can at any time request a brief recess to provide instructions and identify concerns on the quiet.
One style of negotiation is to use the art of pause; put forward a position and do not repeat it. Many negotiators feel compelled to talk and are uncomfortable with silence; such discomfort provides one’s opponent with leverage. One puts their position and then waits. One does not put a position and, without a response, feel compelled to further ventilate – that can be construed as nervousness and desperation; poor optics.
Never bid against yourself
Most negotiations involve opening offers, counter offers, offers in reply and so forth. Do not put an offer and, absent a counter offer, feel compelled to up the ante by putting a further offer before the other side’s offer is forthcoming. Put the offer out there and then just wait; be patient.
Do not be bullied and do not bully
“Whenever you’re in conflict with someone, there is one factor that can make the difference between damaging tour relationship and deepening it. That factor is attitude.” – William James
Some negotiators try to bully their opponent; some are very demeaning to them. The strategy of belittlement is to make one’s adversary look weak in front of their own client, to wobble as it were. When an opponent succeeds in doing this it undermines the confidence that the client has in their advocate. Do not tolerate bullying and resist any temptation to demean the opponent or to take cheap shots. It is the strength of the case and the quality of the advocacy that by and large wins negotiations, so if one allows oneself to be intimidated it can end up very badly in terms of outcome as clients tend neither to be philosophical nor sentimental about loss.
Furthermore, sometimes an advocate will resort to bullying, bluster and, in worst-case scenarios, invective but this is often an indication of a weak case; it’s a camouflage of sorts. Be mindful that if one demeans one’s opponent or their client, then it will probably be much harder to get a negotiated outcome. Cool heads need to prevail and the negotiation drawbridge must not go up; animosity raises the drawbridges and invective closes same.
Attitude and demeanour are thus very important. One’s narrative, one’s ability to listen and get ones point across, and one’s body language are all attitudinal factors, none of which are to be underestimated.
Go the distance
Every negotiation has its own rhythm, character and drivers. Arriving at a negotiated outcome involves a process that happens at a certain pace that allows hardened views and entrenched positions to soften. This process takes time and a successful mediation will often go well into the night. In the writer`s experience, negotiations that kick off at 9 am rarely conclude before midday; in the main they are wrapped up by about 6 pm. Reason being by the time a dispute gets to mediation, it is a fairly mature creature and the ‘cement of animosity has hardened’ as parties may have been at loggerheads for many months. It is likely that they attempted to resolve the dispute earlier, but they could not, so what is needed is a circuit breaker, and that can be the mediation.
Do not tire
Negotiations can go well into the night. It is not unheard of for mediators to bring pressure to bear to wrap things up by day’s end, which is all very good if a deal has been done. But mediation is never concluded until that which is agreed upon is documented and signed off. Close enough is never good enough; not when it comes around to closing out a professionally engineered accord.
Take great care in the drafting of settlement terms
Settlement terms have to be drafted with great care and the old adage “the devil in the detail” is on point. It is best to ensure that a computer and a printer are at hand, so that the client can read through the terms of settlement prior to settling. Although the lawyer or the advocate will have negotiated the agreement, it is the client’s matter, the clients’ money and the client’s deal. It is, therefore, paramount that the client owns the settlement agreement in its entirety. The word ‘own’ is deliberate as the advocate can ill-afford the agreement to be second guessed or ‘re-litigated’ by the client or anyone for that matter. If the client does not understand in all material respects that which has been agreed upon, the relationship between the client and the advocate can go awry at a later juncture.
Being pedantic can be virtuous
Very carefully vet any amendments that are incorporated into the agreement by the other side and, yes, be a pedant. When it comes around to terms of settlement, being pedantic is a virtue. Jurisprudence is often very much concerned with the scrutiny of the written word. The words can be like swords in this context. Ambiguity can give rise to argument at a later juncture so that which was agreed upon needs to have clear and comprehensive manifestation in the settlement instrument.
Some jurisdictions provide bespoke terms of settlement; best to use these as they are invariably comprehensive in terms of the motherhood ‘headers’ that make for a good settlement agreements. If no such template is available, take a well-known one down to the mediation, check to see if the opponent is happy with it at the outset (do not get hung up if she or he wants some minute amendments provided that they do not go substance) and then use this template which has stood the test of time.
It is equally important to get the agreement signed off before the mediation is adjourned; it is always best to ‘strike while the iron’s hot’. Negotiate it, settle it, document it, sign it and move on. Finally, if both parties have displayed a correct and deferential approach during the mediation, and a negotiated outcome is arrived at, although they may not have gotten all they wanted, they will have likely achieved what they needed. If so, maybe, just maybe, the parties will be able shake hands and resuscitate the relationship that may have been terminally ill.