Preparing for Negotiation in Mediation: Identifying Interests
January 30, 2024
The success of a negotiation hinges on effective preparation. Parties and their counsel must prepare in advance to formulate a proper proposal, evaluate competing proposals, and consider a negotiation strategy that manages expectations and potential concessions. This preparation helps minimize the risk of common negotiating mistakes. Understanding the mediator’s goals and techniques will assist both the advocate and the advocate’s client in understanding the mediator’s role and anticipating issues and questions likely to come up during mediation.
The mediator’s role is to assist parties in gathering pertinent information across four main areas: (1) identifying parties’ interests; (2) evaluating alternatives; (3) identifying objective standards; and (4) generating potential solutions.
From the mediator’s perspective, understanding the parties’ interests is paramount. Interests are the parties’ underlying concerns, needs, and fears that are motivating the conflict. Shifting the focus from the parties’ positions (what they want) to their interests (why they want something) yields several advantages, including discovering solutions aligned with the parties’ true needs, uncovering shared interests, and revealing potential solutions.
The mediator will ask your client to identify the client’s interest and seek to have the client understand their counterpart’s interests. The mediator may ask your client to engage in a “role reversal.” This technique, usually performed in separate sessions, requires parties to imagine themselves in the other’s position, to foster a deeper understanding of each side’s concerns. The mediator may use this technique to offer insights into the other party’s potential interests through leading questions.
The mediator will seek to identify common ground and divergent interests.
Divergent interests may fall into five principal categories:
- Different Valuations (parties have different levels of preference for various issues).
- Different Expectations (parties have different predictions about an event).
- Different Risk Attitudes (parties are willing to take different levels of risk).
- Different Time Preferences (parties place different values on when a particular event occurs).
- Different Capabilities (parties differ in skills, aptitudes, and resources).
The mediator will seek out mutually beneficial trades by identifying “low-cost options” – things of value one party may provide to address the other party’s interests while advancing their own to address diverse interests while promoting collaborative solutions.
When preparing for the mediation, remember that the mediator will play a key role in the negotiation. Clients and their counsel should prepare by considering the mediator’s goals and perspectives and should be ready for the mediator’s questions and possible interventions as part of the overall consideration of the parties’ settlement negotiation and alternatives in resolving the dispute.
To read how Castaybert PLLC can assist you with mediation, click here.
