Posted: Friday, 4 January 2019 @ 13:43
The recent failure to announce the EU/UK agreement which never was on Monday 4th December illustrates some of the difficulties of Brexit negotiation and negotiations in general.
Much of the UK press have been critical of the UK Government and blaming it for things going wrong but is also worth bearing in mind the most difficult phase of the mediation is the end phase albeit here we are looking at end of the first phase of negotiations, before we move to trade talks.
Thus it is hardly surprising there has been difficulty here.
In my new book, and with my firm's mediation training, we look at the ways to effectively prepare for mediation which can help avoid some of these problems.
The most effective negotiators spend much more time than others in the preparation and this is often the difference.
This includes the following considerations for legal mediations(but these relate to the Brexit ones as well and serve as good principles):
Size
of your mediation team. Leaner
& smaller teams work A smaller team
containing the person with the authority to settle is far more efficient
than a larger one. The real danger
of having a larger team is that everyone wants to get their six pence in.
The process will be significantly weakened if you do not have the person
with the authority to settle.
Make the
right kind of preparation. Whilst it is correct that lawyers should focus
on the law, ensure that you focus on the fact that this is a form of
negotiation. A negotiator should try to think beyond the law to see if there can be any
commercial solutions, which can be of use to all the parties. In
particular preparation is important at the opening statement and deciding
what content should be in. You should be thinking about what your concessions
will be.
·
Anticipation of the other side.
One of the dilemmas to consider is how entrenched the other side is and how
they will adjust their position. Sounds obvious but many parties become too inward bound.
Authority
to settle. It is an essential requirement of the process that all sides
come to the mediation with authority to settle. All persons who approve the settlement
should attend the mediation so that they can see the dynamic, which
effectively brings the settlement into play.
You need
to have an agreement to mediate. Possibly the UK Government did not have that authority on Monday 5th.