CHAPTER TWO – KEEPING CONTROL, NEGOTIATION & MEDIATION

NEGOTIATION

Negotiation is the process of conferring, discussing, and bargaining to reach an agreement. It is the best way to resolve a dispute. Most importantly, it is the best way to obtain the desired results. To put negotiation in perspective, the by-products of other dispute resolution methods need to be examined:

At least some control of the resolution of the problem will be given up;
The result becomes more uncertain;
Third parties become involved, which will add complexity to the dispute;
When a third party becomes involved, that party’s skill at mediating, arbitrating, or litigating the dispute will be relied on;
When involving third parties in the process, their needs and interests will play a role in your dispute;
The monetary cost of resolving the dispute will probably increase;
As hard as confronting the opponent may be, the emotional costs when involving a third party may increase, and,
The resolution of the dispute may drag on. Considering these factors, you will be more likely to get the desired results by negotiation. Of course, effective negotiation is the key.
Generally, negotiation may:
- Take less time than other methods.
- Cost less money.
- Have a lower emotional cost.
- Give the best chance of obtaining the desired results.
- Like other methods of resolving disputes, negotiation is private, allows creativity, and allows opportunities to preserve the relationship between the parties to the conflict.

EFFECTIVE NEGOTIATING

The most critical factor in becoming an effective negotiator is to:
Recognize that you have the power to negotiate disputes. To be effective, you should:

Prepare for the negotiation by gathering facts and information about the issues and the other person or company being dealt with. An attorney or expert with experience negotiating in a particular field may be consulted to obtain information that can be used in the negotiation.
Consider what process of negotiation will be the most effective toward getting the best result:
- A. Will it be a meeting or meetings?
- B. Will it be a series of letters going back and forth?
- C. Will it be a series of phone calls?
- D. Will it be a combination of these processes?
Read books about negotiation. Some prominent negotiation books are listed in the bibliography.
Talk about the problem with a friend or trusted colleague. Ask how he would approach the problem.
Talk to a lawyer or mediator about techniques that could help bring you and your adversary closer together.
Learn as much as possible about the opponent’s circumstances. What motivates him? What interests him other than his stated position(s)?
Consider all the options. What are the ramifications of each option? Is ignoring or avoiding the problem a possibility? Are there other ways to avoid the dispute altogether? Is legal action a viable alternative?
Talk to your opponent about a joint resolution of your mutual problem. Explain that even if he doesn’t see a problem, one exists because your relationship with him is at stake. Or, a problem exists because each of you will devote time and energy to it if a satisfactory result cannot be negotiated and you are “forced” to proceed with a more intrusive dispute resolution method or legal action.
Have faith in your ability to achieve a favorable outcome. Draw on past experiences. Go for the best result that can be achieved. Learn and use these “tried and true” negotiating techniques:
- Ask questions. Note what your opponent does not say and observe his body language. Use questions to make your opponent invest time and energy into you.
- Stall – if there is something to gain by waiting.
- Bluff – Don’t let the other side know you’re upset or happy.
- Act dumb – let your opponent help you fill in the details by asking questions.
- Use silence – use not speaking to your advantage. The other side may say, or your silence may cause the other side to think the worst.
- Negotiate on the telephone when you initiate the call – this gives you the advantage.
- Separate people from the problem—be polite to the person and firm on the issue you are negotiating about.
- Try to get the other side to make the first offer – that way, you can find out his thinking and position. Also, he may offer you a better deal than you expected.
- Find out the other side’s time deadline—and, even if you have a deadline, never let on that you are acting under pressure.

HIRING A PROFESSIONAL NEGOTIATOR

If you decide not to negotiate alone and want to hire a negotiator to help with the dispute, consider the following:

The dynamics of the negotiation will become more complex. Only the negotiating parties will no longer decide the outcome; both parties’ negotiators will impact it.

Involving professional negotiators is a practical way to resolve your dispute. Experienced negotiators can help the parties clarify the decisions that need to be made to reach an agreement. However, any negotiator may hinder the chances of bringing the negotiation to a successful close.

Keep decision-making power regarding the whole dispute or the points that matter. If this power is given up, you may end up with a decision you are not happy with. You may also be legally bound to the conclusion reached by someone else. For example, a lawyer generally has the power to make binding decisions for his client.

Giving up power to make decisions takes away an advantage of hiring a third-party negotiator in the first place. Utilizing a third party allows the opportunity to take a break in the negotiations for consultations between negotiators and the parties. The negotiator and the party may brainstorm the best way to handle the pending talks. Also, the negotiator can get as much as possible without giving up anything until you approve it. To maintain control over the negotiator and the negotiation:

It should be clear upfront that it is essential to be informed about the progress or lack of progress in the negotiation.
Instruct the negotiator whether or not to provide written reports and phone calls about the negotiation’s progress.
Advise him of the points or items requiring prior authorization and the concessions that may be made without consultation.
Make sure the negotiator is accessible. You don’t need someone who won’t return your phone calls.
Make sure the fee arrangement with the negotiator is precise.
Ensure you are satisfied and will get the most for your money.
Solicit the negotiator’s honest assessment of your dispute. You may obtain helpful information. You may also decide that your views differ significantly from the prospective negotiator’s and hire someone else.
Ask the negotiator about his personal feelings or views about the dispute. See if you agree with his views. Remember that the negotiator’s personal feelings and perspective about the problem will influence the result of the negotiation.
Consider the negotiator’s advice, but don’t accept it unquestioningly. Make sure the rationale behind the advice is understood. If the advice stems from the negotiator’s previous experience, ask what specific experience(s) the negotiator has had in cases like yours.

A NOTE ABOUT LAW, LAWYERS AND NEGOTIATION

Essentially, the law is power if one has a dispute with another party or wants to prevent problems in the future. It may force a party to pay money or do something. It may also enforce a negotiator’s agreement if it falls apart. Yet, the law should only be one of several factors to consider when negotiating a dispute.

CHAPTER TWO – KEEPING CONTROL, NEGOTIATION & MEDIATION

Part 2

Generally, lawyers are preoccupied with the law. When negotiating with other lawyers, the discussion revolves around each lawyer’s opinion of how a court would decide a case. Indeed, in giving competent legal advice, a lawyer must tell his client how he views the case based upon existing statutes or precedents established by case law relevant to the given factual situation. Often, the law factor takes over and becomes the sole factor on which a dispute is eventually settled. This one-factor analysis ignores the actual needs and concerns of the parties in a conflict.

Especially in some areas of law, lawyers are familiar and friendly with other lawyers in their community. They often see each other in court, and over years of practice, they become familiar with other lawyers and their negotiation styles, demeanor, and practice before the court. This may lead clients to believe their lawyer is too friendly with the other side and is selling out their position. Unless the client is there listening to every word their lawyer states to the other side, it is easy for him to become paranoid. If you feel this way, you should request that you be present during all negotiations on your behalf.

The bottom line in having a lawyer represent you is that you either trust your lawyer to be your advocate or you don’t. Lawyers are bound by their code of ethics to be zealous advocates of their client’s interests. This doesn’t necessarily mean they will advocate for their client’s positions. The difference between one’s position and the interests behind those positions leaves room for negotiation. It allows two or more parties to a dispute, with or without their attorneys, to reach a resolution without having a judge or jury decide the issue. If you will only resolve your entire dispute or a part of it a certain way, communicate that to your attorney. That way, your attorney will know that you are only willing to resolve your dispute a certain way, even though there may be other solutions.

If you feel uncomfortable with a particular lawyer being your advocate, you must find someone you are comfortable with or represent yourself. It is challenging for some people to avoid being involved in every step of the process. This decision may require some soul-searching on your behalf when you hire an attorney to represent you in the first place. You need to ask yourself how much control you are willing to delegate to someone who can make decisions on your behalf. If you feel uncomfortable with letting go, you will need to be informed by your attorney of the negotiation process in detail, whether that process takes place in his office or the courtroom hallways. If you want to control the negotiations but want to be represented by a lawyer, the more detailed instructions you give your lawyer, the better off you will be.

MEDIATION

In mediation, a neutral third party assists you in the negotiations. Most forms of mediation are less intrusive than arbitration and going to court, where a third party makes decisions about the dispute.

National organizations of mediators promote the following aspects of mediation:

It’s confidential.
Relatively inexpensive.
It empowers the parties to make decisions and resolve the dispute creatively.
Generally, agreements are longer lasting because the parties solve their problems.
It preserves whatever relationship exists between the parties.

Some assert that mediation is most effective where there are emotional underpinnings to the dispute, such as a dissolution of marriage action, a sexual harassment complaint, a discrimination lawsuit, or a neighbor dispute. There is no reason why mediation cannot be used to resolve all disputes. If it doesn’t work, the parties can always use a more intrusive method. If mediation works, the dispute will be resolved, and time and money will be saved.

Mediation, however, is acceptable. If litigation is inevitable, a party not committed to the process may use the mediation process to gain valuable information that may be used against the other party in the litigation. If the information can be verified outside the mediation process, that information can be used as evidence in a lawsuit. The information will then give the advantage to the party obtaining it in the mediation. Also, mediation may stall the process of resolving disputes between the parties.

In mediation, each party to the dispute negotiates in the mediator’s presence. There may be advisors, including attorneys, for each party present. The mediator has a variety of tools at his disposal, including:

Asking questions helps focus the parties on the issues.
Testing the reality of a party’s position by comparing that position to an outside source or standard, e.g., your opinion of the value of the family residence compared with the opinion of the value of the residence by a professional appraiser,
Reframing statements can get parties to listen to each other. By restating the parties’ statements differently, the mediator can emphasize another point so that the other party will hear what the party is saying from a different perspective. The mediator may also use reframing to focus the parties on a different aspect of the problem or possible solution.
They ask questions to get the parties to articulate the interests behind their positions and find out what motivates them or what they need. In this way, options may be explored that the parties may have yet to think about. The negotiating pie may be expanded to meet each party’s needs, creating a win-win situation.
I will summarize in writing what each party said in mediation and ask each party to verify the accuracy of the writing at the next session.
We are reducing the mediated agreement to writing.
Privately talking to each party separately to help explore settlement possibilities, known as “caucusing.”

Law should be considered as the only standard that may be used to help the parties resolve their dispute. Other standards and the parties’ interests or needs should also be considered. You may be preoccupied with the law and want your rights protected. Yet, it may be more prudent for you and the party you are having the dispute with to resolve it based on what is needed rather than what the law provides.

Mediation, like negotiation, is a conciliatory way to resolve disputes. It can consider all the parties’ needs and tangible or intangible factors, including those used to create a stable, emotional, and moral relationship. This is not to say that mediated agreements should not be legally enforceable; only that the parties can agree to just about anything they want to and decide whether to agree to be legally enforceable.

Legal action is only one way to resolve a dispute over a mediated agreement. The parties can always return to mediation. Mediation may be less expensive than a different dispute resolution method if the parties carefully monitor their time and costs and retain their commitment to the process. Mediation allows parties to decide on a dispute as fast or slow as they want. It also allows them to create their destiny.

Whether or not the mediation is successful will depend on the skill and knowledge of the mediator. Accordingly, choosing the right mediator, as discussed in Chapter 4, is an important task. There is also a need for attorney participants to understand the mediation process. That way, they may help, rather than hinder, the process.

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