The Negotiator Magazine

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Now That Youíre Coming To The Table, Whatís Next?

Negotiating a litigated case depends upon the style of the mediator and the approach of the advocate. Before beginning the mediation session, ask the mediator to define his/her style. Some mediators choose an approach much like a messenger, where they exchange numbers back and forth and actively make recommendations on the number. Others might use a more facilitated evaluation which tends to encourage the parties to come up with their own understanding of risk that might also be more interest based. Whatever the approach, a litigator must be aware of the direction the mediation might go before it begins.

Dealing With The Competitive Negotiator

Many litigators approach mediation in a competitive manner. They view the session as an extension of the litigation battlefield and make negotiations difficult. On the other hand, the cooperative litigator is hopeful that the negotiation will achieve their ultimate goal -- to settle the case -- and assume that the other side is at the bargaining table for the same purpose. Because of these aspirations, it is not unusual for cooperative litigators to put all their cards face up on the table and hope toward a cooperative solution. Unfortunately, the competitive litigator might view this willingness to cooperate as a sign of weakness and attempt to take advantage of the negotiation.

Studies have been conducted demonstrating that cooperation as an affirmative strategy will more likely than not achieve the objectives of mutual gains for all parties. However, litigators in a mediation sometimes must be mindful of the possibility of losing opportunities for the client by maintaining a cooperative attitude throughout a negotiation with a competitive player.

Under these conditions, an advocate in a mediation must be aware of strategic options that can be used in order to avoid becoming exploited in the negotiation. Fortunately, those options have been studied extensively by educators through such game theories as the well known "Prisonerís Dilemma."

Following extensive computer testing of the Prisonerís Dilemma, Professor Robert Axelrod came to the conclusion that the best strategy for achieving goals through cooperation is a simple process he calls "tit for tat." This strategy proposes that during a negotiation, a party must match the opponentís move either competitively or cooperatively. If your opponent chooses to whack you over the head, you must hit back. If your opponent offers an olive branch, you must offer one back, and so on. Axelrod developed five basic rules to follow in achieving cooperative solutions:

(1) begin cooperatively

(2) retaliate if the other side is competitive

(3) forgive if the other side becomes cooperative

(4) be clear and consistent in the approach

(5) be flexible

Those litigators who come to the negotiating table assuming they are still at war sometimes create an imbalance in power with the advocate who choose to be cooperative.

One approach to disarming a competitive negotiator is to use the mediators to get your adversary to commit to the principle that they might have more liability and/or damage exposure than they originally thought. Once that occurs, be prepared with additional information demonstrating that you are capable of continued retaliation. At the same time, have the mediator extend a signal that you are prepared to forgive, i.e., work cooperatively, provided they acknowledge that exposure exists.

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