By Kevin Thomas McIvers

A monthly series of short articles on successful mediation advocacy.

Tip # 7:  “Interests Really Matter – Even in Money Negotiations."

     “It’s 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?

Mediation 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).

In 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.

Even in a straightforward money negotiation, the best negotiators and mediators have a keen eye for the interests of others around the table.  Everyone 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 negotiations).

A 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 positions. 

A good mediator will help you see and use these opportunities, without reducing your effectiveness.  Interests really do matter, to the best negotiators. 

Next month we will consider:

     “Slower Negotiators Get The Best Results.”

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