In my mediation practice I have found that cases are much more likely to settle when the parties approach the process collaboratively. For many advocates, their role in the opening session is to soften the other side. This generally means some version of a toned down jury argument. These statements are almost always followed by an unconvincing statement that they are present in good faith to try and settle the claims. The unstated but clearly understood meaning is we are here to settle “as long as it is on our terms.” In my experience, this is not the best way to get adversaries to listen, which should be your first priority.
In this excellent article, Jeffrey Krivis, presents a comprehensive strategy for developing a collaborative approach to settlement negotiations when confronted with a competitive approach on the other side.
Following extensive computer testing of the Prisoner’s Dilemma, Professor Robert Axelrod came to the conclusion that the best strategy for achieving goals through cooperation is a simple process he calls “tit for tat.” This strategy proposes that during a negotiation, a party must match the opponent’s move either competitively or cooperatively. If your opponent chooses to hit you over the head, you must hit back. If your opponent offers an olive branch, you must offer one back, and so on. Axelrod developed five basic rules to follow in achieving cooperative solutions:
- begin cooperatively;
- retaliate if the other side is competitive;
- forgive if the other side becomes cooperative;
- be clear and consistent in the approach;
- be flexible.
Like fishing, the best thing to do if you are an attorney representing a client in a competitive mediation, is to throw out your rod and start reeling them in. Now, what do I mean by “start reeling them in”? The idea is to get one side to commit to the principle that they might have more liability and/or damage exposure than they originally thought. Once that occurs, be prepared with additional information demonstrating that you are capable of continued retaliation. At the same time, have the mediator extend a signal that you are prepared to forgive, i.e., work cooperatively, provided they acknowledge that exposure exists.
Mr. Krivis suggests the following framework for dealing with a competitive negotiator:
- Opening Statements: Be Firm But Kind
- Use Your Client To Tell The Story If The Client Will Sell
- Collaborate With The Mediator In The Initial Caucus
- Consider The Advantages And Disadvantages Of Having The Mediator Evaluate The Case
- Recognize The Intermediate Step Between Identifying The Issues In The Case And The Final Settlement
- Look For Clues In What The Mediator Tells You
- Plan The Exchange of Information
- Committing The Other Side To Your Principles
- Control The Use Of Confidential Information
- Learn How To “Dance”
- Anticipate Internal Bargaining Disputes Within The Defense
- Consider The “Mediator’s Proposal” As A Tool To Close The Gap
Formulas like this are educational models to consider. In the final analysis, you should feel free to utilize the style and approach that has succeeded for you in the past, knowing that you now have some additional tools and insight to draw from in the future. “Tit for Tat” allows you the flexibility to compete in order to avoid being vulnerable, yet cooperate in order to achieve a mutually beneficial and lasting outcome.