By Kevin Thomas McIvers

A monthly series of short articles on successful mediation advocacy.

Tip # 8:  “SLOWER NEGOTIATORS GET THE BEST RESULTS.”

It is axiomatic that the party in negotiation who wants or needs the settlement the least is in the stronger negotiating position.  Why?  Because that party can better tolerate the risk of walking away, rather than making excessive consessions.  If the risks of not settling are unacceptable, the party will feel compelled to compromise more, to avoid a dangerous or cost-prohibitive legal battle.  Therefore, negotiators look for ways to convincingly convey the idea that they do not need to settle, including use of a tactical walk out.  Rather than taking such an extreme approach, there are more subtle ways to convey the client’s resolve.  Consider an important corrillary to the first axiom:  Slower, more patient negotiators achieve the best results.

In many mediations, parties will declare their willingness to walk out as a tactical gesture, and may even stage a tactical walk out.  I have settled many cases, after hours of one or both sides repeatedly packing their bags to leave. This is a dangerous and often unnecessary tactic.  Cases which should settle may be pushed through months of costly discovery, or even to trial, without the parties really exploring settlement options.  Most parties come to mediation precisely because they are motivated to settle.  How can a negotiator use mediation to effectively demonstrate the resolve to achieve a favorable settlement, without prematurely ending (or delaying) the discussion?

The answer is to work patiently with a skilled mediator to overcome the obstacles to a favorable settlement.  Mediation is a process which takes time to unfold.

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