Mediation Strategies: A Lawyer’s Guide To Successful Negotiation
In order to achieve a successful negotiation, an excellent lawyer must possess the following 4 characteristics:
• Preparedness: A lawyer must be well prepared with the present facts and laws in order to convince as well as to win the confidence of another side.
• Transparent: Mediation is a platform where there is an exchange of information between the parties. If one party chooses to conceal relevant facts and information, then the negotiation might be weak. It can cause suspicion in the eyes of the other party. Hence, both parties must be transparent to each other in the course of negotiation.
• Tolerant: In case, the attorney is required to work overtime he must be tolerant. Mediation is a hectic process requiring tolerance and patience.
• Flexibility of compromise: This is the most important characteristic of a mediation lawyer. The lawyers must be aware that the parties opting for mediation are at risk of losing something. So they must be willing to compromise at the cost of reasonable resolution.
Here we discuss some of the best strategies of mediation that lead to successful negotiation.
Initiating the mediation:
Most parties hesitate to opt for mediation mainly because of two reasons. Firstly they feel that the other party is ‘very far apart. Secondly, there is a perception that it will waste time due to the unreasonable nature of the opposition.
In reality, these are the most important reasons so as to why there is a need for mediation intervention. If two parties are already too close then they can come to a resolution on their own. Mostly mediation occurs when one party is in direct contrast with the other.
When disagreements are based on emotions rather than reason, it takes time to subdue the emotions. After the process attains reasonable rationality, the mediation gets started.
The Right Time and The Right Mediator:
The best time of initiating mediation is quickly after the dispute arises. However, in most cases, parties choose to delay until the trial arrives. The closer the date of the trial approaches, the sooner people choose to mediate and compromise rather than enduring the uncertainty of the trial.
Commonly, there are two situations where the early intervention takes place to settle the cases:
Firstly when the case is not very strong and secondly when the appellant re-evaluates the proceeding. These early interventions are advantageous in strong cases. For instance, if the parties are not willing to suffer financial hardships, they can opt for early interventions.
The court also refers both parties to mediation before the settlement of the cases. This time is used in sharing information, establishing the foundation for the future course,s, etc. This approach often proves to be advantageous and a healthy approach towards settlement.
There are other two ways that involve the opposite counsels to decide the right time for mediation: Firstly, the counsel can speak directly to the opposite counsel to ask when the party will be ready for mediation. Secondly, the mediator will engage with both the parties confidentially to determine the right time when both the parties will be ready.
SELECTING THE RIGHT MEDIATOR
The mediator need not express any kind of opinion. But the main purpose of a mediator is to facilitate and encourage talks between the parties. The mediator is expected to disclose any form of acquaintanceship with any party related to the case. However, a mediator who has an acquaintanceship with the party or has previously dealt with the case is not barred to be a mediator. A mediator with prowess and knowledge in the subject related to the case can better serve than a mediator with little or no knowledge about the issue. Conclusively, a mediator with subject expertise, formal education, and work experience is the most suitable mediator for the case.
Pre mediation strategy:
As mediation is a hectic procedure, it requires a lot of time and effort. To ease the workload, a collaborative relationship between each counsel must be initiated. The lawyers and mediators opt for pre-mediation telephonic conferences to discuss certain issues. These issues include:
▪ Discuss the process that is understandable and comfortable to everyone.
▪︎Scheduling of sufficient time for completion.
▪︎ Scheduling a date for exchange of position papers.
▪︎Preparation of clients for a joint session.
▪︎To deliver a convincing presentation on the date of the joint session.
Scheduling of Time:
A scheduling a time limit of a few hours will result in reaching no resolution. Each case is different by facts, laws, and position of parties. While some cases can be resolved within a few hours other cases may take an entire day. If scheduled a day, the dispute may be resolved early which is well and good. If the time scheduled is less than the actual time needed it may require scheduling additional sessions. Therefore attorneys must schedule an entire day starting early in the morning. As no one knows where the case will be headed to a time limit which is enough must be set upon.
Aware of your client of the functions of each participant in the meeting. You must have an in-person meeting with your client discussing the following things:
•, Unlike other dispute resolutions, the purpose of mediation is not to decide which side is right or wrong. The mediator is a neutral third person.
•Both the mediator and the other side is required to be impressed.
•A compromise is most likely when there is mutual respect.
• The client must provide the other side with everything they require to analyze the case properly.
•The focus should be more on the problem than the people.
•You must be clear in your mind about the initial request and what you actually want from the mediation.
•Be determined and do not give up until you are met with the resolution.
•Do not lose hope if you do not reach to settlement in your first meeting. Because there are many cases that require additional sessions.
Preparation of position paper:
Basically, a position paper is made to inform the mediator about the case, highlight the case’s strong points, and set the foundation for a successful negotiation. Here we will discuss some of the tips to achieve all the functions through position paper.
•Goal Oriented: The main purpose of the position paper is to promote the settlement. A position paper must avoid derogatory allegations against the other party. Finger-pointing and allegations made are counterproductive to the original goal.
•Sharing of position papers: The mediator must ask both the parties to exchange their position papers several days before the session. Both parties must share all the relevant information with each other to avoid suspicion. If one counsel refrains from sharing the position paper, it denotes the underlying weakness of arguments, flaws, and something suspicious.
•Arguments advanced: You must frame your arguments with supporting facts. The mediator and the other party are going to read your position paper so you must clear your stance in brief. You can also attach copies of the cases that you feel can serve as relevant precedents.
A mediation proceeding starts with the joint session. In a joint session, all the parties are present with their positions. A mediator ensures that all the participants get an equal opportunity to speak uninterrupted. Rebuttals are made and direct questions are also asked the opposing parties.
•Tone: You must be willing to reach a settlement. You must attend the joint session with a positive attitude and the other party must have trust that you are willing to compromise.
•Direct discussions: Here you will get an opportunity to directly discuss your position with the other party. In a joint session, it is the first time when all the parties are present in one place. Each participant must use this opportunity to address the opposing party while clearing your instance.
• Clearing of factual disputes: A joint session is a perfect scenario where all the parties get an opportunity to be well versed with the facts of the case. All the parties must know clearly what the dispute is all about. Therefore joint session offers to clear of fact-based misconceptions.
Presentation of the Opening Statement:
A presentation is made at the beginning of the joint session just like an opening statement is made in front of the jury. Following are some tips and tricks to make your opening presentation more convincing.
•You must directly speak to everyone present there and not just the mediator.
•Do not use pointing remarks to the opposite party. Present an attitude of confidence not of righteousness.
•You must not present your personal conclusions and opinions. Instead, you should focus on the conclusions given by the facts and pieces of evidence.
•You should use this opportunity to acknowledge any of your weaknesses and how would you overcome it.
•Give effective replies to the opposite party when required. Summarize their points and give out the areas where you disagree.
Dealing with demands and offers:
A successful negotiator begins with asking high numbers offering room for plenty of bargaining. In the position of bargaining the demand and offer numbers must be reasonably justifiable based upon the facts. You must tell the mediator about the number of your demand or offer. Making a demand is not a sign of weakness but instead denotes that you are serious about reaching a settlement. While coming to another bargained number, you must cite the specific reasons. This would pave the way for successful negotiation.
The Bottom Line Effect:
It is very obvious that the client needs to discuss the overall profit involved with the lawyer. There is a learning opportunity in the field of mediation. The mediator tells the parties about the strength and weaknesses of their positions. The perfect evaluation only happens once the joint session ends. The negotiation process determines the value of the lawsuit. The number demanded by the plaintiff and the number actually paid by the defendant decide the worth of the case.
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