A Fresno Mediator’s Observations On Effective Negotiations Skills and Techniques In A Mediation: Things your client should know for a mediation: The Negotiating Process
You have prepped your client about the mediation, talked to him about timing issues and informed him about the ins-and-outs of a Joint Session. Next, you must prepare him for negotiating.
Why Do You Need To Prepare Your Client About The Negotiation Process?
As an attorney, you are a great negotiator, and it probably comes second nature to you. However, for the average person, negotiating makes them uncomfortable. They do not like it. Many people would rather run and hide than "haggle", as they see it.
As a mediator, I have seen sophisticated businessmen squirm when it comes to "negotiating." So, as their attorney you need to prepare your clients for the negotiation process, what to expect (at each stage), how to control themselves, and how to succeed.
As attorneys, we know what to expect at mediation: tough negotiations, low ball offers, threats of storming out. You see it all the time.
However, your client has not. Clients are not used to negotiating so directly. Rarely are they haggling, except for when they are buying a used car, which most people find upsetting.
Many times, the client would rather walkaway, quit, or go to trial because negotiating makes them uncomfortable.
Interestingly, www.carconnection.com stated, "When asked about ways to improve the [CAR] sales process, nearly one-third--32 percent, to be precise--said that they'd like to see haggling go the way of the dodo." This is why you see a rise in Carmax and even Tesla. People hate to haggle. That is why each offer/demand will be a traumatic event. Each response will be gut wrenching. However, if you prepare your client for the ups-and-downs of negotiations, you will increase your odds of settling.
But how?
How To Prepare Your Client About The Negotiation Process.
The easiest way I have found is to inform the client about the stages of negotiations, and what to expect:
The (frustrating) early stages
The (boring) middle stage
The (surprising) hiccup stage
The (stressful) final stage
The Final Stage
When you are planning your preparation for the mediation with your client, use the "Stages" method to help frame your discussion. Of course, some clients are fully engaged and others are not involved. Regardless, if they are there they will be hearing and sensing what is going on. With this framework, you can explain to your client your role: As a counselor at the mediation. If the case does not settle, you will return as their advocate.
Prepare Your Client For Early Stages Of The Mediation
The beginning of the mediation is always disappointing for parties, but if you prepared your client about timing, Joint Sessions, and how to deal with outrageous openings, you will be ahead of the game. We have talked about these issues, and you need to prepare your client for the opening volleys.
Clients expect their matter to settle easily, which does not always happen. However, if you prepare them for the opening volley, you are more likely to settle.
The beginning always takes longer than the parties want. Your client thinks this is easy; why is the other side taking so long. However, each side is feeling each other out, like boxers feeling out each other in the first round. There might be some jabs but it will take time. Prepare your client for lengthy negotiations so he or she does not become frustrated before the mediation even takes off.
Prepare Your Client For Middle Stages Of The Mediation
Because your client survived the opening stages of mediations, you can not assume you are home-free until you get a deal. The middle stages can be difficult to navigate due to fatigue. The mediator may spend significantly more time with the other party, leaving you and your client alone in the room for over an hour sometimes, especially if it is a multi-party action.
Your client will get antsy, frustrated, tired, hungry, and disengaged. You will know you are in the "Middle" stages when your client starts saying things like, "What is happening?" "Why is this taking so long?" or "What are they doing in there?" The drudgery of the negotiations are setting in, and you will need to keep your client on track.
Let your client know the Middle stages the following will likely occur:
The mediator may spend more time with the other parties hashing out issues
The movements from the other side may slow down
The offers/demand may start to change (e.g. non-economic issues)
How to combat this?
First, make sure you went over this with the client before the mediation, so they know to expect it.
Second, take time to explain to your client (even if seems obvious to you) what is likely happening in the other room. Advise your client the mediator may be taking along time with the other side because they see the case very differently, or there are emotional issues he is working through, or the other side has client control problems. Once your client understands the process and perceived delays, he will be more patient.
To combat fatigue and apathy that may set in, take this time to explain to your client why you suspect the other side acted as it did, but more importantly, why you made such an offer/demand. Letting your client know why you lowered the amount will not only show him what a master negotiator you are but also keeps him involved. This interest in the dynamics of the mediation and negotiation will help keep them focus on the task at hand--settling their case.
Third, stay positive. Keep your client upbeat and in good spirits because frustration will set in. It's part of the process. As the attorney, you can keep your client upbeat and engaged, which will increase the chances of settling your case.
Fourth, bring some food for the clients. Trust me, they will love you for it.
Prepare Your Client For the Hiccup Stage Of The Mediation
The Hiccup stage is where something goes sideways. Perhaps, the other side threatens to storm out or offers less than the previous number. Your client will turn to you for guidance through the unexpected.
For you, it is all part of a day's work. But for your clients, they only see catastrophe, more legal bills, a deposition, and four weeks out-of work while in trial.
So how do you deal with it?
Prep. If you talked to your client before the mediation (or even during) about the possibility of "unknowns," then the client will be expecting it so when it occurs, he is not so shaken from it. Before the mediation, talk to your client about the other side. Maybe the other attorney is a "cowboy" or a "hothead". Let your client know and to expect that the other side may try desperate tactics. Tell the client, "The other side may try something crazy, and when it happens, we will stick to our gameplan and proceed." So when it happens three hours into the mediation, you can remind your client, "I told you the other side has a temper." This will lessen the blow for the client and keep them rational, when the other side is irrational.
This doesn't take much time either in the pre-deposition. A few moments really. And when it happens, you reference back to that discussion and watch as your client's apprehension dissipates.
Prepare Your Client For Late Stages Of The Mediation
You are in the homestretch and you see a resolution is coming, but you have to keep your client focused.
First, do not let them assume a deal is done until it is. It is your job to keep the negotiating going even though you suspect it will get done. I have seen deals go sideways at the end because the parties assumed the other side was in agreement before they were.
Second, before (and especially during) the mediation, discuss with your client what a settlement would like:
How long to get the check
How long before he has to send the check
What are the "other" terms
What are the "normal legal" terms
Confidentiality
Signing requirements
Deadlines with the Court
Lien issues, paying other parties, insurance implications
Tax ramifications
etc.
You can go over these terms in preparation of a mediation, so your client will know what to expect before the deal is done. Then, you can hammer out the details in the final stages of negotiations, and it will expedite conclusion of the matter and show your clients you are a master negotiator, lawyer, and counselor, and you may just get another (and another and another) case from them.
Summary
When preparing your client for the negotiating process, try to follow this framework to help your client with handling the negotiating process focus on the stages:
The early stage
The middle stage
The inevitable hiccup stage
The late stage
Once you advise your client on these issues, he or she will be able to handle negotiating with confidence.
WHAT NEXT?
I am a mediator in Fresno, California who mediates throughout California and beyond. I am available for all your mediation needs. You can reach me to schedule a mediation at:
PEEL | GARCIA
3585 W. Beechwood Ave., Suite 101
Fresno, California 93711
559-431-1300
--Troy
P.S.-Get a FREE printable PDF of our
TOP 5 NEGOTIATION TIPS-
Plus 5 more BONUS 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.