Before your next mediation, ask yourself: Do you know your mediator's style?Mediators can have a predominant orientation—evaluative or facilitative. They may also approach issues related to confidentiality differently. These can have significant practical and ethical implications for your case.
A recurring strategic question in mediation is simple but critical: “How high or low should the first offer be?” When parties lack visibility into how their counterpart will react, data suggests that they often default to aggressive opening positions. They want to set the ceiling or floor and pull the counter toward it.
A recurring strategic question in mediation is simple but critical: “How high or low should the first offer be?” When parties lack visibility into how their counterpart will react, data suggests that they often default to aggressive opening positions. They want to set the ceiling or floor and pull the counter toward it.And at first glance, that instinct isn’t irrational. Early anchoring research showed correlation with improved outcomes. But newer studies suggest that lawyers should think more holistically when advising clients.
Earlier today, I participated in the DelawareState Bar Association (DSBA)’s Best Practices in Mediation,Arbitration & Special Master Proceedings CLE. Joined by Magistrate Judge Fallon, Joseph Slights,Peter Walsh, Jr., and Steve Brauerman.
At some point today, you or your clients may engage in a negotiation over videoconference. Before you do, there are some simple, statistically-backed techniques that can best posture the conversation for a successful outcome.
When asked as a mediator if remote mediations can be successful, I believe they can be and I encourage parties to consider some of these techniques to improve the "richness" of the communication. Likewise, when working with counsel to resolve discovery disputes, I opt for video because it offers a deeper connection.
When negotiating complex corporate disputes, litigators routinely think about their client’s bottom line, about how aggressive an opening offer should be, or about how their legal arguments are more persuasive than their opponent’s arguments. The goal is, of course, to maximize the client’s recovery in any negotiated agreement. But what if your client would also benefit from you taking a sincere and deep curiosity into what the opponent wants, why they feel entitled to it, and how they view the dispute?
