Four Non-Traditional Mediation and Negotiation Strategies

February 07, 2013

If your company or organization finds itself engaged in litigation, chances are that the dispute will be resolved in a conference room rather than a courtroom.  Most lawsuits settle before judgment, and in-house counsel increasingly are turning to mediation — negotiation assisted by a third-party facilitator — to resolve their clients’ disputes.  They hope mediation will be faster and cheaper than litigation and yield a better result.

But the potential benefits of mediation often are undermined because the participants enter the process with the very litigation-oriented, adversarial mindset they meant to leave behind.  They focus on winning the argument rather than getting to yes.  They try to game the system, glare across the table, argue about who is right, and just generally pour time and resources into activities that undermine the goal of settlement.

In-house counsel contemplating or involved in mediation should take a step back and consider whether the standard ways of doings things really serve their or their clients’ needs.  Do they promote your dispute resolution goals?  Surprisingly often, the answer is no.

In a recent article in The Corporate Counselor, a longer version of an article that previously appeared in the Forbes Leadership Forum, I urge participants in mediation to stop doing what comes naturally.  The article outlines four strategies that run counter to much conventional wisdom in the dispute resolution world.  They may not be traditional, but properly employed, they work.  They are:

• Let the other side pick the mediator.
• Don’t argue (much) about who is right.
• Leave the litigators at home.
• Deal with hard issues last.

An upcoming article will address a number of other strategies that can increase your odds of success in mediation or negotiation.  They include:

• Don’t look at the person who is talking.
• Break bread together.
• When the going gets rough – tell a joke.

If you have other non-traditional approaches to mediation or negotiation that you can share, please comment below, or contact me directly at:  shorer@gilbertlegal.com.