It’s about them.
I imagine this is very hard to hear.
One of the best, if not the best, negotiation tip I can recommend is to forget about you (and your client) for a moment. It’s not about you. It’s about them: the other party, your opponent, your negotiation adversary, your nemesis; however you want to characterize the person on the other side.
Stuart Diamond, Professor of Negotiation at the Wharton School and author of Getting More, encourages negotiators to start with this negotiation technique: consider the pictures in the other person’s head. I’m guessing this is a radical thought to some lawyers, as we are relentlessly trained to marshal the facts and argue for our client. While these tactics work well in writing and arguing motions and certainly at trial, different tactics are needed for successful negotiations.
In preparing for negotiation, Professor Diamond suggests that you begin by asking yourself:
What is the other person feeling?
How do they perceive the situation?
What are the pictures in their heads?
If you don’t know the answers to these questions, Ask. As part of your mediation preparation, ask opposing counsel for her perceptions of how her client feels and where she thinks he’s coming from. At the mediation make use of a joint session to ask.
The prerequisite to persuasion is listening first. Once the other side feels heard and respected, they are more likely to listen to you. This negotiation advice is widely circulated. See, for example: Mark Goulston (Just Listen) and Stephen Covey (7 Habits of Highly Effective People). It’s curious to me that it is not widely followed by lawyers. You might consider adding this to your mediation skills.
Negotiating at a mediation, we would do well to remember this further advice from Stuart Diamond: “[R]emain focused on the other party. After all, they almost always have what you want,” which is, to settle the case. Great advice to avoid impasse in mediation.