Prepare to Logroll Your Differences
|June 27, 2017||Posted by admin under Preparing for Mediation||
Negotiation preparation includes thinking about differences in a different way: Differences are good! They can be traded. They rarely have equal value to both sides. An issue might have less priority to you and a greater priority to the other side. Consider logrolling to exploit your differences.
As lawyers, most of us think of the differing viewpoints of each side as impediments to settlement. After all, if the other side views the case exactly as we do, mediation would be unnecessary. Rather than thinking of differences as obstacles to overcome, try looking at them as opportunities to exploit.
People care about the issues in a mediation. But here’s an important point: their passion is not equal on every issue. If there is an issue that they are passionate about and you are not, conceding that issue to them creates an opportunity for you to gain a concession on an issue you are passionate about.
Prepare for your next negotiation by thinking of the differing points of view you and the other side have. These could be differences in priorities, risk evaluation, time preferences or expectations about the future. The other side might be more risk adverse than you. The timing of settlement payments may be important to one side, but not to the other. What will happen in the future may look different to the parties. Consider questions to ask at the mediation that could ferret out these differences.
If you think about all of the issues ahead of time, you can make an educated guess about the other side’s passions. At a mediation joint session, or in caucus with the mediator, you can test your hypotheses. Logrolling your differences can help you avoid impasse at mediation.
Malhotra and Bazerman in Negotiation Genius have a terrific explanation of this strategy.