Mark’s Mediation Strategies

In cases involving a dispute over money, the parties routinely exchange a series of offers and counteroffers, but in the process, may not give much thought to the message their numbers send to the other side.  For example, when a party makes a small, incremental move in comparison to his previous moves, is that party signaling he is quickly coming to his final number, is he reacting negatively to the other side’s last move, or is he showing pessimism about the chances of settlement? Too often, the message underlying a proposal is misinterpreted, leaving the participants feeling angry, frustrated and discouraged. 

One way to avoid this problem is to couple your next move with a verbal explanation that makes your meaning and intention clear.  The mediator can help you develop this rationale and ensure that it is communicated effectively.  This is especially important when you or your client have decided to make a painful concession on a point which has been hotly contested.

A carefully planned message delivered with your settlement proposal ensures that negotiations do not falter on a misunderstanding, and can demonstrate to the other side your good faith, even if they don’t agree with your position. 

As always, I am ready to work with you and your clients to achieve satisfying case resolutions.

Regards,

Mark Loeterman
Mark Loeterman Mediation
Email: Mark@MLmediation.com

Mark’s Mediation Strategies

In virtually every negotiation, differences emerge which threaten to scuttle a deal.  Seeing only obstacles ahead, some people simply throw in the towel.  Rather than giving up, however, look for ways to “dovetail” conflicting interests, making concessions that are of low cost to you and high value to the other side.  This can be an effective technique for getting around an impasse.

For example, in a business dispute, the parties may value time differently.  An installment plan operates on this principle, where the defendant is willing to pay a higher price if it can pay later, and the plaintiff is willing to accept delayed payment if it is assured of receiving a higher price.  The idea is that exploiting opposing preferences and priorities can lead to a trade that benefits everyone.

There are other examples as well.  Setting a precedent may be important to one, while the other may care about vindicating its reputation.  In a real estate case I mediated, a buyer who felt cheated in its acquisition of a luxury residence feared potentially staggering costs to repair undisclosed defects, and that the stigma which might attach in a future sale would adversely impact the property’s value.  By contrast, the seller believed that any defects were merely cosmetic rather than structural, that the repairs could be taken care of at minimal expense, and once completed, the property could likely be re-sold for more than the price the buyer had paid.  What kind of a deal did they negotiate?  Rescission of the purchase and adjustment of each side’s transaction costs.

As always, I am ready to work with you and your clients to achieve satisfying case resolutions.

Regards,

Mark Loeterman
Mark Loeterman Mediation
Email: Mark@MLmediation.com

Mark’s Mediation Strategies

In positional bargaining, which is what occurs in the settlement of many legal cases, each side takes a position, argues in support of it, and makes a series of concessions in the hope of reaching an agreement.  While pressing their own claims, however, parties typically do not acknowledge to the other side that they have given due consideration to their opponent’s arguments.  As a result, negotiators become frustrated and angry because the concessions they receive do not seem to take into account the things they have been saying. 

By linking your concession to one of the other side’s issues, you show them not only that you have been listening, but that you are aware of the risks associated with some legal argument or piece of evidence, even if you do not agree with it. 

At bottom, we all want to be heard, and the feeling that the other side is paying attention and understands our views can be a powerful stimulant to productive negotiations. We enhance the credibility of our next number by “tying” that move to an opponent’s specific concerns, and avoid any appearance that our proposals are just another arbitrary step in the “negotiation dance.”

As always, I am ready to work with you and your clients to achieve satisfying case resolutions.

Regards,

Mark Loeterman
Mark Loeterman Mediation 
Email:  Mark@MLmediation.com

Mark’s Mediation Strategies

Information is a valuable commodity.  It translates into power, both in litigation and at mediation. The careful use of information is an integral part of your bargaining strategy.  At the outset, it is important to understand what information you need to obtain from, and provide to, the other side so there can be a meaningful negotiation.  Here are some practical steps for handling information most effectively.

First, have the mediator arrange an exchange of information that is orderly and reciprocal, and which clarifies the positions being taken. This assures that no party feels vulnerable and manipulated by a one-way disclosure.

Once a protocol is established, then solve the information gap.  Ask the other side questions that are designed to buttress your position or better evaluate risks.  Next, consider revealing discreet pieces of information which demonstrate strength and confidence in your case, such as an analysis of damages or a case citation that supports a decisive legal principle.  A series of deliberate, thoughtfully-timed disclosures can yield significant concessions from your adversary.

As always, I am ready to work with you and your clients to achieve satisfying case resolutions. Please call if I can be of assistance.

Regards,
Mark Loeterman
Email:  Mark@MLmediation.com

Mark’s Mediation Strategies

Lawyers are careful at mediation about the information they reveal.  They fear giving up some advantage or losing the opportunity to surprise an unsuspecting opponent.  To learn how to protect sensitive information in a negotiation, just listen to how politicians talk.  They use a range of “blocking” techniques to avoid answering even the most probing interview questions.  Skillfully applied, these blocking techniques prevent unplanned disclosures without arousing suspicion that critical information is being withheld.

Consider, for example, a reporter’s question about the highly-charged issue of taxes and deficit reduction.  “Would you be willing to raise taxes to lower the deficit?”  Many politicians, especially in this economic climate, are reluctant to discuss raising taxes, so they treat the inquiry as a springboard to deliver a hawkish statement on ballooning deficits and the need to cut spending.  Negotiators can use a similar approach when responding to compound questions, answering the beneficial part(s) of the question (in this case, the part dealing with deficits) and ignoring the rest.

Another technique employed is to deliberately misconstrue the question and then change the focus to a different topic.  This time, assume a very specific question about the politician’s willingness to support a tax increase.   The politician responds, “I can see that you are worried about the deficit, a concern which I share deeply.  It would be unfair to ask the next generation to inherit an unsustainable debt…”  Instead of answering the touchy question, the politician has reframed the inquiry to a subject more to her liking and then answers the reformulated question.  When confronted with a difficult question, try turning the conversation in a new direction or responding with a question of your own.

As always, I am ready to work with you and your clients to achieve satisfying case resolutions.  Please call if I can be of assistance.

Regards,
Mark Loeterman
Mark Loeterman Mediation
Email:  Mark@MLmediation.com