As a mediator, I’ve discovered a truth that wasn’t really self-evident during my years as a litigator. Over the past ten years, I’ve repeatedly observed plaintiffs and defendants allow their negotiating strategy to be dictated by the other side. If one side presents a demand or offer deemed unreasonable, the other invariably counters with an offer or demand intending it to be equally unreasonable, inevitably leading to a series of tit-for-tat moves that make resolution more difficult. To prevent this scenario, consider declaring your independence from “reactive” negotiation.

To declare your independence, design your negotiating strategy in advance of the mediation. First, identify a reasonable settlement range based upon a realistic assessment of potential liability and damages and your best prediction of the other side’s evaluation. Second, present an opening demand or offer that will position you well for the ensuing negotiations while also earning the respect and appreciation of the other side. Third, plot out a series of carefully calibrated subsequent moves — each smaller than the one before — that will clearly signal your intentions well before you exhaust your authority. Finally, commit yourself to your strategy.

Admittedly, the other side may try to gain a competitive advantage by refusing to reciprocate. Remain committed to your strategy, at least for the next few moves. If the opposing party still refuses to engage on your terms, ask your mediator to explain the probable ramifications to them. If that doesn’t work, consider proposing a bracket that is consistent with your negotiating strategy. And if that doesn’t work, decide whether your client will benefit more by “pulling the plug” than by continuing to pursue your negotiating strategy until you have exhausted your settlement authority.

Declaring your independence is effective for a variety of reasons. First, it renders the other side’s negotiating strategy largely irrelevant which, in turn, leaves the other side feeling impotent. Second, it invites the other side to become more cooperative, which often begets compromise. Third, if you follow your negotiating strategy until you exhaust your settlement authority, you will communicate your “bottom line” to the other side in a way which leaves no ambiguity.

So next mediation, join the revolution and declare your independence — it’s your unalienable right.

Happy 4th of July!

Floyd J.

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