Preparing for Negotiation in Mediation: Identifying Objective Standards and Generating Options

February 1, 2024

Once the client and counsel have identified the parties’ interests and considered alternatives, they should develop objective criteria that both sides will reference during the mediation. Examples include market valuations, precedents, scientific or professional opinions, costs, and traditions.

In a pre-mediation conference, the mediator may ask your client to identify the client’s objective criteria and the standards the client anticipates their counterpart to rely upon in the negotiation. In this step, the mediator will try to frame each issue as a joint search for objective criteria to foster a collaborative approach to problem-solving. As part of this approach, the mediator may ask your client for the reasoning behind the other party’s suggestions. The mediator may then seek to have both sides agree to certain criteria and standards applicable to the matter.

Once objective criteria are established, parties and their counsel should brainstorm options to address the other side’s potential concerns and consider possible tradeoffs as part of the negotiation. The mediator will seek to develop “low cost” options that satisfy each side’s concern, thereby creating value in the negotiation.

During preparation, it is not enough to have the facts and information. Advocates and their clients should spend some time thinking about how they will use and present that information. They should also devote significant time to brainstorming a wide range of possible proposals and options before choosing which to lead with in the mediation.

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