13 Aug Mediation Negotiation Strategy: Enter the “Ring” of Resolution
Cooper Mediation’s Jonathan Cooper often describes opening offers in mediation using a boxing analogy.
Imagine you’ve got two boxers starting from their respective corners inside the ring. Until the boxers get close enough to one another to land a punch, neither side will make contact. Getting within an arm’s-reach of your opponent requires taking some risk. The opponent may land a punch on you, but it’s also the only way for you to land a punch on them.
A common misstep is staying too close to your corner and waiting for the opponent to “make the first significant move.” Is your plan to practice shadow boxing and demonstrate your fancy footwork? Realistically, after witnessing this show, will your opponent admit they are hopelessly outmatched and just throw in the towel by agreeing to your highball / lowball offer? It’s not likely. Moreover, you run a real risk of ending the mediation without meaningful engagement from either side.
A productive mediation process is fueled by tempting your opposition while also acknowledging your own risks. Both are two-way streets. You need to make an offer tempting enough to demonstrate real risk if the opposition doesn’t take your offer seriously and you do better at trial (for example, partial vs. substantial indemnity costs). In response, you should receive an offer predicated on how tempted they were to make a substantive move towards the middle.
You don’t have to start with your best or final offer but extending the proverbial olive branch first with an offer in the realm of reasonableness invites the opposition to reciprocate. Be transparent through the mediator, ensuring your counterparts understand that you won’t continue making concessions without serious engagement.
Key Takeaways:
*Proactive Willingness to Compromise Early – Encourage Reciprocity & Engagement
*Don’t Let the Mediation End on Your Account
*Mediation is a Risk-Sharing Exercise
ABOUT THE AUTHOR
Jonathan T. Cooper
is the taller, younger and non-bow-tied mediator with Cooper Mediation Inc. He mediates primarily, but not exclusively, in the area of personal injury and insurance. Jon belongs to the International Academy of Mediators. The IAM is an invitation-only organization consisting of the most successful commercial mediators in the world who must adhere to the highest practice and ethical qualifications.
Jon can be reached at jon@coopermediation.ca or at (647) 993-2667.
To schedule a mediation with Jon, visit: http://coopermediation.ca/jonathans-online-calendar/.
ABOUT THE ILLUSTRATOR
Logan Cooper joined the Cooper Mediation team in November 2017 and devotes 100% of her professional time to mediating at roster-rates. She has mediated over 550 cases in the areas of personal injury, property damage, employment, long-term disability and other insurance-related disputes. She has handled global mediations, cases with multiple parties, self-represented litigants and cases with complicated technical and interpersonal challenges.
Logan can be reached at logan@coopermediation.ca or (416) 726-1344.
To schedule a mediation with Logan, visit: https://coopermediation.ca/logan-cooper-online-calendar/.