Tricks for the Litigator in Effective Negotiation in Mediation



These tricks, learned over years of litigation and mediation, can help you as a litigator and negotiator in mediation.

 

  • Let your client tell their story.  It is important for the client to have some catharsis, to get matters of their chest and to be heard.  It is important for the other side too.
  • Look for the body language.  It will tell you if emotionally your client and the opposing side (and even the mediator) are reacting well to what is happening – and be ready to adapt your tactics accordingly.
  • Identify the real impediments in each conflict.  Look for what is motivating your client and the other side.  It may not only be money – it only be money – figure it out early and revisit the assumption to break impasses as they occur.
  • Dig for the emotion.  Work to get people to discuss openly what makes your position stronger – and what might gain you advantage with the other party.
  • Be effective.  Does your audience react better to visual, tactile or oral information?  Use what works.  Documents, PowerPoints, video, audio.  Know what will drive your point home.
  • Think creatively.  Every party is competitive – lawyers more so.  As the lawyer, it is up to you to help your client identify what is really in their best interests and the way to get there.
  • Change the perspective.  When you are advocating, try to see the dispute from another perspective – think about what the other side needs – not just what they want – and work for a win-win solution.  Do the same with your own client.
  • Put your foot down.  If the other side takes a ridiculous position – call it out professionally.  If your client takes a ridiculous position, bring them back to reality – let them see the undesirable end result of the position they are taking.  Help the client see the forest when they are focused on the leaves.
  • Inspire trust.  Be prepared. This means have your case ready for trial – or as ready as it can be at the point in the litigation.  Preparation creates fear in the opponent and confidence in your client.  Be honest with the downsides of the case – explain the faults in your case as necessary.  Listen to your client and be reasoned – be a Perry Mason – not a Bozo the Clown.
  • Be yourself – authenticity and honesty work.  Be prepared to give your advice cooly and calmly.  Then listen to your client.

Let me know what other suggestions you have for being a better negotiator – tell me at your next mediation!  See you soon!

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