The aim of this guide is to help you negotiate in mediation and get what you want and need.
There are two main methods of negotiating namely, positional negotiating and negotiating on the merits.
These guidance notes concentrate on the latter. From experience, positional bargaining as it is sometimes called is adversarial, competitive and concentrates on the cost to you of compromise, rather than the benefits to you and the other person(s) finding a solution. Positional bargaining often masks important underlying interests, leads to mixed messages, misunderstandings, misperceptions and often forces matters into court.
Negotiating on the merits
- Separate the question of personality from the problem to be discussed.
- Focus on your interests (what is really important) rather than on adopting an intransigent position.
- Concentrate on inventing options which benefit you both and meets as many of yours and the other person’s needs and interests.
- Consider your best alternative to a negotiated agreement which is often litigation through the courts.
Separating personality from the problem
It is extremely important to disentangle the human issues from the pragmatic issues. Do your best to understand how the other person thinks. Ask the question “If you are the other person what are they asking you to do?”. Understanding the other person does not necessarily mean you have to agree with them, but you must understand them before you can influence them. This process often involves acknowledging your own emotions as well as the other persons without reacting to the other person’s emotions. This is of course, often easier said than done.
The aim is to find the pragmatic solution that suits you both.
Focus on interests rather than positions
Look for the underlying interests of you both and focus on those which you share and which are compatible such as your children’s best interests. See your problems as joint problems rather than a contest of wills. Again, all this is often easier said than done, but it is an ideal well worth striving for.
Invent options which benefit you both
We often call this process brainstorming or idea sharing.
Our role as Mediators is to facilitate the process of “brainstorming” in any way we can. There are many techniques that can be employed for this purpose. For example,we ask you to avoid negative comments and to keep focused on finding solutions to your joint problems. Creative solutions are often hidden behind self-interests so again it helps to understand each other’s interests.
Rely on objective criteria
Family mediators specialising in financial and children matters are able to give you as much legal information (not advice) as you require to ensure that the solutions and options discussed by you fall within the parameters of the standards and principles applied by the court.
What is a fair outcome will largely depend on what you both decide so long as the outcome falls within acceptable legal parameters. If you require legal advice during the process of mediation we will recommend that you take it.
The mediator may also be able to provide you with various guidance notes on the law as and when you require these if they believe that they may assist you in your decision making.
Best alternative to negotiated agreements
During the process of mediation there may come a time when you have to consider your best alternative to a negotiated agreement (BATNA) which, in most cases, means communicating with each other through your solicitors and ultimately going to court for the judge to make a decision. This of course removes you from the decision making process and it may be that in some, albeit a few, circumstances this is an appropriate course of action. But, it is expensive!!
You will recall that mediation is a voluntary process and that either the mediator or you can bring this process to an end at any stage leaving you with the alternative of corresponding and communicating through your solicitors should either of us decide that this is more appropriate.
Practical Points
Here are some points that may assist you to negotiate effectively in mediation :-
- Ask your partner to explain their position and reasoning ie “Help me to understand the details of your proposals, how you have arrived at it and why you believe it is something I should accept/how it meets mine as well as your needs”.
- Treat attacks on you as attacks on the problem. Remain focused on the problem rather than on the personal attacks. Remember that it is people who feel powerless who feel the need to exert power.
- Be ready to explain to the other person what you want and why and to persuade them (1 above in reverse).
- Acknowledge your feelings and confirm them by saying, for example, “I am feeling upset” rather than “you are making me angry”. ‘When you do or say this or that, it makes me feel X,Y,Z because of A,B,C which i am trying to control so that we can concentrate on trying to find a solution here’.
- Try not to be categorical. Always invite the other person to explain their position. You might want to say, for example, “Please correct me if I am wrong” or “I am open to persuasion, i just need to understand how that will work in practice/how that will help me as well as you …” rather than I am right, you are wrong.
- Remain focused on trying to achieve what is fair and keep returning to this and the merits of your position. This will help you stay away from personal attacks. Keep turning back to the merits by asking questions rather than making statements which are less threatening. They will invite the other person to take part in the process of trying to find a mutually suitable solution rather than excluding them.
- Try to engage the other person in the mediation process and get them involved in assessing the situation, looking at the options and arriving at a fair solution.
- Remember that, only when you have fully understood the other person’s point of view can you assess whether what you have in mind is fairer and begin to persuade them to agree with your thinking and the solutions you have to offer to meet both your concerns, needs and interests.
- Always consider your best alternative to a negotiated agreement (batna) without using this as a threat or ultimatum about court proceedings. Remember that you both have a shared interest in keeping matters out of the court.
The mediation process can be challenging, but well worth while if it means that you are able to agree matters in partnership and in a constructive, non-adversarial way, whether the issues concern a workplace dispute, contractual dispute or family dispute involving your children or finances.
Should you choose mediation the mediator’s job will be to support you and the other person in this decision and to assist you both in reaching a solution.
John E Hind
Director, Compass Resolution Ltd