What’s Happening In The Other Room(s)?
This post has been viewed 2,130 times.
Mediation can be an intense experience for parties and their advisers. Often there is a lot on the line. In the substance there may be money, control, reputation, pride. In the process, there are challenges such as influencing other parties, getting the best deal possible, making well-informed judgment calls about risk, developing effective offers, and much more beyond.
To retain clear thinking in that context is a serious challenge. Very understandably, there is a tendency to get caught up in the bubble of one’s own thinking and strategizing. An early casualty of this can be a loss of perspective. Everything gets viewed from the single perspective of how it looks in that room, by those people, under those conditions, at that time.
I see this most obviously in two areas where parties make choices in mediations.
So when considering a move in a mediation – whether it be in relation to process (such as whether or not to meet with another party, etc) or to substance (such as the content of an offer) – I would encourage thinking not only about how it fits with that party’s own analysis, ambitions and strategy, but also how it is likely to be received, and what impact that may have on the discussions going forward. Some helpful questions which parties and advisers can ask themselves might include:
• How will this move look to the other parties?
• How are they likely to react? How might it influence their response? Is that the influence we wish to engender?
• How would it look to a notional bystander, watching these negotiations?
• What would my long-time friend/adviser (not involved in the mediation) think of it?
• How does it look to the mediator? What reaction does the mediator think that move will produce, knowing as he/she does more about what is happening in the other rooms than we do?
• If we don’t want (eg) a joint meeting, might the other party want one? Why might they? Might we learn something from that? How might we try to ensure that we learn something? Might they gain something from it which they need in order to enable them to think about settlement, in which case why would we want to deprive them of that?
Tags:
