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October 2007: Negotiating to Deliver Results

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Negotiating to Deliver Results

Mediation is about agreement and compromise.  For some this might not seem a good way to resolve a dispute, especially when fuelled by the idea of ‘winning’.  But when you consider the success rates of mediation – where both parties reach an acceptable conclusion -  settlement in mediation has to be a better result than ‘losing’ through the Courts.

According to figures released by the government disputes using mediation settle in at least 80% of cases.

In a mediation situation the mediator will be seeking to help all parties reach agreement using the crucial skills of negotiation. These skills will be used, not only by the mediator to help reach an agreement, but can be used by the disputing parties themselves and their lawyers. Indeed lawyers who master the art of negotiation can not only help their clients reach a settlement, they can often help them get a better deal.

So what should you do to ensure an effective negotiation?  Here are just a few tips from Justin Patten, mediator and expert negotiator:

Plan & prepare in the right way – The most successful negotiators are not those that are gifted but those that have in fact given careful consideration to the issue at hand. This can manifest in researching your position and the other sides, your aspirations and those of the other side. If you start thinking what are your best-case scenario, your worst case and giving thought to the concessions that you will make, this sets the basis of having a successful negotiation. 

Listen more than you talk – All of us like to express ourselves but often when the other side (or in the case of a mediation, the other side and the mediator) is talking they reveal some information about their desires for the negotiation. Often this can be part of an area of overlap and can be all the difference between the deal being reached or not and enabling you to successfully negotiate more effective terms.

Keep emotions in check – In my experience many people get far too emotional when they negotiate. Emotion is not necessarily a bad thing as it shows motivation. However if you lose control the chances are that you make some form of error which may come back to haunt you in the negotiation process. If you have researched your position carefully, anticipated some of the issues which may come up, then this puts you in a better position to negotiate.

Balance aggression against co-operation – Often individuals can think that the best way to negotiate is by being aggressive. As a mediator I don’t agree and believe that the best result can come from a softly, softly approach. According to research conducted in the United States up to 87% of negotiators performed more effectively when they were co-operative whereas those that considered themselves aggressive negotiators 85% of them were found to be ineffective. As a consequence it can be assumed that the aggressive negotiator will only see his or her tactic work in 1 in 6 cases. For a lawyer or mediator this is probably an unacceptable fail rate, so learning another way is well worth while.  Food for thought for negotiators who believe that to get the best deal you need to project strength.     

(Generally) make the first offer – When people are negotiating many people like to see the other side make the 1st offer but is this the best way? According to Leigh L. Thompson, author of The Mind and Heart of the Negotiator it is not as she writes:  “Whichever party – buyer or seller – makes the first offer, that person obtains a better final outcome. Why? First offer acts as an anchor point. First offers collate at least 0.85 with final outcomes, which suggests how important they are.”  In my experience there are circumstances when you should not make the 1st offer such as if you are dealing with a party who may be desperate to get a deal but generally you should make the 1st offer albeit not too low so that it is accepted straight away.
For more information on negotiation and mediation visit the Human Law Mediation website.

Mediation the answer in pay disputes?
The number of women taking employers to court claiming unfair pay is rising so quickly that it has left the system unfit for purpose, according to the head of Britain’s equality watchdog.

Jenny Watson, chair of the Equal Opportunities Commission, is reported to have said that the flood of pay claims brought recently against local authorities is pushing the tribunal system to breaking point.

She said that the surge in cases, which more than doubled in number between 2005 and 2006, were a result of the glut of no-win, no-fee lawyers working in the equal pay arena. She gave warning that while most cases involved local authorities, the private sector was just as vulnerable to legal action. Companies with opaque mechanisms for handing out bonuses and which do not have performance reviews were particularly at risk.

The Human Law Mediation take on this news is that employers should look to mediation to settle such disputes, well before they reach the tribunal stage.

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Words of Wisdom
“Let us never negotiate out of fear. But let us never fear to negotiate.”
John F Kennedy

My father said: "You must never try to make all the money that's in a deal. Let the other fellow make some money too, because if you have a reputation for always making all the money, you won't have many deals.
J. Paul Getty

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