Tips for Negotiating and Mediating

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At some point, we all have a negotiation. In the legal setting, this often occurs when negotiating during a mediation, but you probably also have negotiations in many other settings, as well, like when buying a car, interviewing for a job, or working out the terms of a home loan. Since negotiating is a necessary skill for everyone's life, it is a good idea to understand a few tips to give you the advantage for getting what you want.

In the context of a mediation, strong negotiation skills are a must. There are few settings where the parties can start so far apart and still reach an agreed upon resolution. The best way to approach any negotiation is to have a plan, stick to it when possible, but keep your ears open for possible alternative terms that can get you where you want to be at the end of your negotiation.

At the most fundamental level, it is best to have a best and worst scenario in mind. You will generally start a negotiation looking for your best case scenario. Say you have a lawsuit worth $20,000. You will start the negotiation at $20,000 (or perhaps just under that to show you are negotiating in good faith). Your second scenario is what you will take as your worst case scenario. So, you decide that you will accept no less than $12,000 in your $20,000 lawsuit. If the other side is not willing to come up to your worst case scenario situation, then your plan will be to say “no deal,” and walk away from the negotiating table.

Of course, the other side will probably have a similar strategy in mind, so you will need to exercise a little patience. Your first offer may be $20,000 on your best case scenario offer, but their best case may be $0, so they may offer something insultingly low. Obviously you will not want to jump from your best case scenario to your worst case, but rather, move fluidly based on the circumstances. The effect of this approach is that it shows that you are not desperate, wares down the other side, and will make the other side feel like you are giving them a serious deal when you finally come to a number or other term with which they can live.

Which brings up another point: sometimes you want to think of other terms that are “outside-the-box” in order to facilitate a settlement. For example, in simple money disputes, sometimes offering something as simple as the ability to pay a sum over a term can make all the difference. Other times, it may take something else, like agreeing to some non-monetary concession, to make the deal happen. A surprising number of disputes over money are worked out by offering something as simple as a written apology.

For that reason, it may be a good idea to put a little time in doing research on what the other party may want or need or trying to understand what motivates them. You should also make sure you fully understand your side of the negotiation, as well, and what is at stake. Think of negotiating a deal on a car: the experienced car enthusiast can often negotiate a better deal because he known the car and what it is worth, the problems with the car (or weaknesses in the salesman's case), and so forth. The inexperienced buyer, on the other hand, ends up paying too much and immediately falling in love with the first thing s/he test drives even though many better deals were possible had a little more research and been put into the negotiations.

The most important thing to remember in a negotiation is to never become desperate. Once you do, you will lose the deal and get a bad bargain. If the other side seems locked in their position and unwilling to move to come to a deal that you believe is reasonable, then that means either one of you is being unreasonable or that you are simply too far apart in your view of the deal being negotiated to make it happen. If either is the case, it simply makes more sense to walk away and let everyone cool off or to find a better bargaining partner. You are never obligated to enter into an agreement with which you do not agree, even in a mediation. If you do not believe a deal is in your best interests, even in a negotiation, you can simply have an impasse declared and walk away.

Many attorneys are trained negotiators and do it for a living. So, if you have a big deal that needs a careful, experienced negotiator, it may be wise to contact a local attorney for assistance.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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