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5 MORE TOP NEGOTIATING TIPS FROM A MEDIATOR

M. Troy Hazelton

5 more Top Tips

As a Mediator in Fresno and throughout California, I have seen the best negotiators and I previously gave you my Top 5 Negotiating Tips. At mediations, your clients will rely on you for advice and will ask something like, "Should I ask for more?" or "Should I pay that?" It's inevitable. since your clients are relying on you, I couldn't leave you with just 5 tips, so I have five More Top Negotiating Tips for your next mediation.

Imagine sitting in your next mediation with that client who expects to settle, even though he is taking an "aggressive" position (to put it nicely). He looks over to you, and even though his bill is two months over due and says, "settle this case today."

Now, you know he isn't going to budge off his number, but thankfully you have a few tools from your toolbox. After the mediator fumbles with the other side, you whip out the contracts, set in chronological order, along with all the amendments, and the mediator already figures you have the facts down and is going to rely on that. Plus, the night before, you had met the client for dinner and laid out the mediation process, so he doesn't think its like Law & Order.

Then it comes.

The outrageous opening from the other side. Under most circumstances, your client would have stormed out, like he did in your last case with him. But beforehand, the two of you only exchange laughing glances because his prediction was closer. You then probe the mediator and find out the other side isn't interested in the money, but only in shutting this case down too. Instead, of making a best and final offer, you test them, pushing them with offers/demands until you're ready, keeping them from running out of the mediation.Then, the mediator comes in and says, "You have a deal."

Your client is shocked, but you aren't because you followed the below negotiation tips:

FIVE MORE TOP NEGOTIATION TIPS

Follow these five Tips to dominate your next mediation:

#5 BRING THE KITCHEN SINK

This may sound obvious, but you would be surprised how often attorneys arrive without the key (and persuasive) documents. Bring the exhibits you will rely on, including the relevant cases, photographs, contracts, etc., that will be hotly contested. Your client will be impressed when you whip out the photograph encapsulating their case, and more importantly, if you have the information, you control the mediation.

Plus, the mediator will go to you for the "facts," since you have the hard evidence. You become the authority on the facts of the case, which will increase your credibility with the mediator, the other side, and your client. #4 EXPECT THE UNREASONABLE OPENING

It will come. It always does. However, if you anticipate a sky-high demand or low-ball offer, it isn't as offensive. In fact, most excessive opening offers/demands are necessary for the negotiations to work. See my article on Winner's Curse. To cushion your client, make a game out of it. Try to predict with your client what the other side's first number will be. Bet first round of meter money or a Pepsi from the vending machine. Doing so will lessen the emotional sting from an "insulting" demand or offer.

#3 PREPARE YOUR CLIENT

At mediation, the best attorneys are the ones with the most prepared clients. You've sat through countless mediations, but your client's knowledge about the law likely is from TV, where mediations do not exist. Explain not only the mechanics of mediation (Joint session, break out rooms, etc) but also what to expect, the time investment, the dickering, everyone's role. The more prepared your client is, the more comfortable he or she will be, which means a smoother negotiation.

There are several great articles out there about preparing your client for a mediation, including Part 1, Part 2, and Part 3, along with Richard Barron's Ten Commandments for Counsel Preparing For Mediation, Jams: Preparing Your Client For Mediation, and

Jason Long: 10 Ways To Prepare Your Client for Mediation. #2 OPEN. OPEN. OPEN

Ask open ended questions about the other side. What's their mood like? How did they respond to that last offer? How is the other party handling negotiations? These questions will help you determine how to direct your negotiations. Reconnaissance is your best ally.

Chris Voss, a former FBI negotiator, calls it Calibrated Questions, which is an awesome name for it. Voss sums it up nicely:

"The most approachable and least threatening are the “What?” and “How?” questions. “What’s the biggest challenge you face?” is one of my favorites and one you’ll find appropriate for almost every interaction you’re in. It’s a staple from a list of questions I learned are favorites of Jim Camp’s from quite a few years ago. Jim and his guys referred to these as interrogative-led questions. It’s a great “What?” question and will yield an absolute treasure trove of information.

While you will never ask three different calibrated questions in a row, an advanced technique is to ask the same question three different ways:“What’s the biggest challenge you face? What are you up against here? What causes the most frequent breakdowns?” This method actually helps your counterpart think, makes the issues more three-dimensional, and gets you better answers. For the occasional negotiator who is absolutely addicted to the alternate choice method the absolute killer of that method is “How am I supposed to answer that?” You’re going to love how much that throws this guy off his game. Again follow this with golden silence. Don’t squash your great question!"

So, at a joint session, you can ask, "What do you think the court will do about that piece of evidence?" Follow it up with, "What do you think the jury will do when it hears....?" and end it with "What would the court say if you tried to exclude the evidence and it let the document in?"

That can shift the discussion in your favor fast. #1 DANCE FEVER

Be willing to engage in the "dance" of negotiations, which gives the parties a chance to settle in and test their expectations. People are used to the give-and-take, but they confused (and angry) when the other side tires to short-circuit the process by leaping to the "bottom line" or "top dollar." "Cutting to the chase," creates the feeling of being bullied or pressured, and the other side's natural instinct will be to close down. Besides, this is the time to show off your moves for your client. So, negotiate.

 

Warning: When someone says, "Let's cut to the chase," be very careful. They may be trying to shortcut the process to prevent you from negotiating down below an amount.

 

As a recap, the Top 5 Tips are:

5. Bring the Kitchen Sink

4. Expect the Unreasonable Opening

3. Prepare your Client

2. Open. Open. Open

1. Dance Fever

For a Visual summary:

(Click HERE to download a PDF version)

YOUR GO-TO MEDIATOR IN FRESNO

I am a mediator in Fresno, California whose practice stretches all around the state of California. I am available for all your mediations throughout Central California.

PEEL | GARCIA

3585 W. Beechwood Ave., Suite 101

Fresno, California 93711

559-431-1300

Thank you,

-Troy

P.S.-Get a FREE printable PDF of our

TOP 5 NEGOTIATION TIPS

(Throw it in your briefcase to read while that mediator is in the other room and impress him when it's your turn to negotiate)

**This publication is provided as an educational service and is not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.

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M. Troy 

Hazelton,

Esq

Mediator

Special Master

Attorney

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