By Kevin Thomas
monthly series of short articles on successful mediation advocacy.
Tip # 7: “Interests Really Matter –
Even in Money Negotiations."
only about the money,” a familiar comment of lawyers and judges,
when a party in negotiation insists otherwise.
Is it really absurd to speak of “interests” in the typical
money negotiation, or is there something real and worth considering?
theory is based largely upon the concept of “interests”.
The idea is that the important needs or concerns of a party are
often obscured beneath an emotionally charged and misleading array of
concepts which demonize the opposition, and justify one’s own notion
of reality. These
concepts are translated into a “position” in the negotiation,
usually expressed in the form of great conviction about the
righteousness of one’s cause, and relative inflexibility (real or
feigned) in the terms of negotiation. Mediation ideally gets beyond positional bargaining, by
exploring what was unsatisfactory in a party’s past experience, and
what that party needs in the future (i.e. interests).
some cases, it is easy to see the importance of interests.
In employment litigation, an employer may want to improve the
culture of a dysfunctional department while confidentially resolving a
claim. In a business
case, parties may want to disentangle their affairs, without
alienating customers or vendors.
In certain cases, future relationships may be as important as
any financial settlement of past disputes.
However, most litigated disputes present few obvious interests,
beyond the sum of money changing hands.
in a straightforward money negotiation, the best negotiators and
mediators have a keen eye for the interests of others around the
in negotiation has interests beyond the sum of money under discussion.
A personal injury
plaintiff may have a spouse who must be accounted for, or specific
financial goals (i.e. to pay for college or retirement).
A young associate may need to impress the partner, or the
firm’s important client. An
insurance adjuster may need cover (or documented “new
information”) to justify a shift on a misevaluated file.
Certain participants may need to experience a measure of
control at the table (unfulfilled ego-related needs have killed many
little creativity in acknowledging, and even assisting your opponent
in satisfying an interest, can greatly increase the probability of
achieving an acceptable settlement.
In one recent case involving a wrongful death with serious
insurance coverage problems, plaintiff’s counsel took defendant’s
private counsel aside to acknowledge the difficult task of protecting
the defendant while generating sufficient funding to settle.
The defense posturing on liability fell away, and the two
worked together on funding a realistic settlement figure.
The same plaintiff’s attorney approached each of the two
insurance carrier coverage attorneys in a similar spirit, helping them
to justify funding at a sensible figure, without butting heads over
good mediator will help you see and use these opportunities, without
reducing your effectiveness. Interests
really do matter, to the best negotiators.
month we will consider:
McIvers is a full-time mediator since 1996, serving California and the Western
United States. He is a Fellow and
Vice President of the International
Academy of Mediators, and a Diplomate of the
of Distinguished Neutrals.