Preparation For Mediation

You cannot script negotiations. Mediation is a dynamic process and even the best negotiators cannot crystal ball how things will turn out.

There is uncertainty in the most straightforward negotiation, never mind an attempt to mediate between two bitter rivals. The parties need to be prepared to deal with surprises and should be ready to improvise. Paradoxically, the more prepared you are the more you can improvise.

Agility is key to being a good negotiator. You need to be quick on your feet in order to deal with everything that the process throws at you.

Thorough preparation provides the core stability required to integrate the unexpected while keeping sight of your preferred outcomes, and to change direction in a balanced way if necessary. While numerous mediation theories may assist, ultimately you must deal with the situation on the table as it unfolds in front of you.

There is no right way to negotiate. Differences in context, personalities, knowledge and skills all contribute to making each negotiation stand alone. Negotiation is an unpredictable interactive process that no one party can control. Effective preparation is essential to enable the negotiator to anticipate and deal with a wide variety of eventualities and possibilities.

In my experience parties and their advisers do not prepare enough for mediation. Preparation requires an objective, accurate, non-judgemental assessment and understanding of all parties’ interests and needs, not just your own. Preparation is not only knowing your own party’s legal case and rights. Negotiators often fail to give due consideration to the other party(s)’ positions, needs and interests and how those factors may be played out both in preparation for mediation and at the table.

Preparation should include consideration of at least the following areas:

• Understanding your client’s interests.
• Identifying the interests of the other parties.
• Determining if the interests you have identified are shared, differing or conflicting. Work out how shared or differing interests can be used to create value. Plan how to deal with conflicting interests.
• Identify the options the parties may have to satisfy interests. These options will be added to around the table.
• What alternatives do the parties have away from the table (BATNA etc)?
• Consider unreasonable expectations (yours and theirs). How can these be tested?
• What might a fair result look like?
• Are there relationship issues that need to be factored in?

Published in New Zealand Law Society’s ‘LawTalk 898’  6 October 2016.