Mediation is all about reaching a deal acceptable to all parties. And, at the core of every good deal is a constructive negotiation. This doesn’t mean you need to be an expert negotiator to achieve your goals in mediation. You do, however, need to know a few basics.
Check Your Pre-Conditions at the Door
One of the most damaging things you can do is begin negotiations with pre-conditions. When you have firm pre-conditions, you’ve drawn a line in the sand before the first word is ever even uttered. This instantly builds a wall and puts the other party on the defensive. It also closes your mind to new ideas and creative possibilities.
Let’s say, for example, that you’re mediating a special education due process claim. If you come to the table with the firm condition that your child MUST be placed in a non-public school, you’ve already built a barrier. You are acknowledging you’ve left no room for negotiations and refuse to hear other ideas. This approach will get you nowhere fast.
Take Bite-Size Pieces
Another unproductive approach to negotiations is to tackle the dispute as a whole. A much better process is to divide the dispute into smaller pieces and address them. Often it is easier to obtain agreement on the key issues after doing so on less important points.
Consider an employment dispute where the major issue is, typically, money. Perhaps a plaintiff suing a former employer would be willing to accept less money if the employer were willing to provide a positive letter of reference or otherwise address the employee’s concern over the future.
Empty Threats and Lines in the Sand
One of the worst negotiation tactics you can employ is to tell the other party that you’ve reached “the bottom line” if you really have not. In other words, don’t draw a line in the sand unless you’re truly ready to walk away for the last dollar.
To illustrate the power of a standing firm once you characterize a proposal as a “final offer,” I often tell parties the true story of my wife’s experience at a car dealer. We had gotten an unsolicited offer from the dealership to trade in her car and upgrade to a new model. We agreed that if we could trade in the car and spend up to $10,000 to get something she wanted, we would do it. She handled the negotiations herself. At the end of a few hours, the best deal offered would have cost her $10,050. So she walked out. Sure enough the dealership later called her and asked her if she’d be willing to come back. The owner had, as it happened, come to the store from out of town and found out about the lost deal. When my wife returned, he was there, pulled $50 out of his pocket and said, “Do we have a deal?” She drove home with her new car. Imagine walking away from a negotiation like this over fifty bucks. That’s the meaning of “bottom line.”
I spent part of my career in labor relations negotiating many contracts with many different unions. The team of which I was a part had to deal with a history of prior management making “last, best and final offers” from which they would, inevitably back down and agree to further concessions. Our team negotiated to impasse and had several strikes all of which were necessary to reestablish the credibility of management’s claim that final really meant final.
Once you assert a bottom line position, you simply cannot make further concessions without destroying your credibility. Of course, this doesn’t mean you can never use the bottom line claim as a tactic. It simply means if the other party calls your bluff, you will have to suspend the negotiation and devise a way to make the concessions (if you are willing to do so to get a deal) without appearing to have backed away from your position. There are a number of ways to do this.
When confronted with a party who insists on characterizing its last proposal as a bottom line, I always advise making a counter offer. The worst that happens is that the party says: “I meant what I said. Final means final.” More often, however, you discover that “final did not mean final.” Even if the first party is unwilling to negotiate any more at that time, the likelihood is that your counter offer will keep the conversation going and tell the other party a deal can be worked out.