Mental Preparation II - Negotiation Tactics
| Author | Stephen Walker/David Smith |
| Pages | 121-137 |
8.1 Introduction
Not every negotiation is a mediation, but every mediation is a negotiation. Representatives can easily find themselves negotiating not just with the other side, but also with the mediator, funders, insurers, counsel’s clerk and their own client.
8.2 Negotiation – practice v theory
There are thousands of books, websites and courses on negotiation. In this chapter, we concentrate on just a few points. They are basic and even trite, but many representatives ignore them and in doing so do not help their client’s cause.
8.2.1 Be clear in your own mind
In order to achieve a settlement, the mediator must be able to generate some momentum. This will be easier if the parties have already mentally travelled along the settlement path before they start the journey. Visualisation is a technique used by sportsmen training to win. It is just as useful for parties preparing for mediation. Just think where you want to get to, what you must do to get there and imagine yourself and your team doing it.
If the clients have been taken through a pre-mediation analysis, they will know what they want, what it is worth to them to achieve their objective and the chances of them achieving it other than by negotiation at mediation.
8.2.2 Who should be in the team?
In commercial mediations, clients often want to bring along colleagues in addition to the legal representative. How many should be in the team and who should they be?
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Less is more
Less is more. The bigger the team, the bigger the risk of ‘groupthink’ developing where members of a team take more extreme positions than they would if they if they were acting individually. Groupthink can become a difficult obstacle to overcome.
Decision maker
The essential minimum is the decision maker. In corporate clients, this will often be a person who is more senior than the people who have been handling the problem or who were involved in the original dispute. Decision makers usually want to have these people present to provide them with information. There can be a tension between the person brought in to deal with the problem and the person who has caused it. It is better to be aware of this dynamic before the mediation.
Expert witnesses
There is no need to bring expert witnesses to the mediation. They can brief the clients and the representatives in advance. It can be useful for them to be available on the telephone or by a web chat service in case something crops up. The danger of discussing settlement proposals during the mediation with someone who is not physically present is that they do not pick up on the nuances on the day as the process evolves. If the dispute has technical elements or the solution to it will require technical input, this can be accommodated within the settlement agreement by agreeing a process for the technical input to be provided.
If expert witnesses are present, there is a danger that they will seek to persuade everyone else that they are right and the other experts are wrong, and the mediation turns into a contest between experts instead of a conversation about common ground.
If expert witnesses attend the mediation it is good practice to allow them to meet with the mediator in private session. Hot-tubbing is, after all, now an established part of litigation procedure in England and Wales having been imported from Australia.
The Handbook confusingly refers to witnesses, both of expert opinion and of fact, giving oral evidence at the joint opening session (paras 14.58–
14.59). This really does misunderstand what mediation is about – mediators are not there to find facts; no one is on oath; no one is cross-examined. Of course, questions are asked and statements of fact, law or opinion challenged. People are there to make peace not war; to reach a settlement not a judgment.
Representatives must make sure not only that they are up to date with the Civil Justice Council, Guidance for the instruction of experts in civil claims, but also that experts on both sides are as well. The Guidance is available at:
www.judiciary.uk/related-offices-and-bodies/advisory-bodies/cjc/cjcpublications/guidance-for-the-instruction-of-experts-in-civil-claims/
Some of the most relevant points are:
9. Experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code. However when they are instructed to give or prepare evidence for civil proceedings they have an overriding duty to help the court on matters within their expertise (CPR35.3). This duty overrides any obligation to the person instructing or paying them. Experts must not serve the exclusive interest of those who retain them.
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11. Experts must provide opinions that are independent, regardless of the pressures of litigation. A useful test of ‘independence’ is that the expert would express the same opinion if given the same instructions by another party. Experts should not take it upon themselves to promote the point of view of the party instructing them or engage in the role of advocates or mediators.
12. Experts should confine their opinions to matters which are material to the disputes and provide opinions only in relation to matters which lie within their expertise. Experts should indicate without delay where particular questions or issues fall outside their expertise.
13. Experts should take into account all material facts before them. Their reports should set out those facts and any literature or material on which they have relied in forming their opinions. They should indicate if an opinion is provisional, or qualified, or where they consider that further information is required or if, for any other reason, they are not satisfied that an opinion can be expressed finally and without qualification.
14. Experts should inform those instructing them without delay of any change in their opinions on any material matter and the reasons for this ... .
8.2.3 Team roles
Representatives and their clients need to think about what roles various members of the teams will play. This is the realm of negotiating techniques, and there are hundreds of books and articles about them. A list of useful and accessible material is set out in Appendix 5. We have found much of what is written to be interesting and entertaining, but of limited use in practice. There are occasional tips and warnings which make sense, but in the end the style that a party adopts is usually more a matter of personality and life experiences than techniques picked up from books or articles.
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Different team members will have different personalities. Some will find it easy to be dogmatic, awkward and unyielding. Others will want to be liked and approved of by the mediator or the other side.
There are endless characterisations of types of negotiators. Are they firm, hard or soft? Are they a turtle, a shark or a fox? As Socrates said ‘Know thyself’. It is interesting and may be useful if representatives at least work out what type of negotiator they are and think about what type of negotiator their client is. By all means take a Myers Briggs personality test, there is nothing to be lost by doing so, although there may be not much to gain apart from causing a pause for thought and reflection. If representatives decide that they should have some negotiation training, they will be overwhelmed with choice, but basically how they negotiate is a matter of applied common sense, practice and reflection.
However, the heart of negotiation is:
• People make deals for their reasons not yours. So, find out what they want.
• It’s all about the mutual recognition of reality: your own reality and theirs. So, think hard about what they are.
• You don’t get deals done by arguing about the law and facts but by discussing proposals. So put the proposals on the table early on.
Representatives should refresh their negotiation skills, and read, mark, learn and inwardly digest the six universal laws of negotiation:
1. Reciprocity: we scratch your back if you scratch ours.
2...
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