Negotiation Skills - Carolina Mediations

Why? And Why Not?

May 3, 2022

Does the “Why” Matter? As lawyers we are trained to discover the facts of a dispute and apply the law to those facts. Lawyers are good at uncovering the what, when, where, who, and how of a dispute. All necessary ingredients for good trial preparation. But how often do you understand why? Why are the parties in conflict? Why can’t they resolve the conflict? Mediators have the luxury of hearing both sides of the story. We hear those stories from both counsel and the party in conflict. I am sometimes asked why, if everyone knows the mediation will come down to a money exchange, we do not just skip ahead to that negotiation. The answer is that if that was all that mediation is, there would be little need for a mediator. Understanding the conflict story almost always opens possible solutions that are otherwise obscured. Somewhere deep in the

Do You Negotiate Over E-Mail?

April 24, 2022

E-Mail communications are fraught with dangers not present in face-to-face or telephone communications. Human beings are programmed to communicate with more than just words. Take the example of a simple apology. When you offer or receive an apology in person, you instinctively interpret the sincerity of that apology by reading facial expressions and body language, among other things. The difference in result between an obligatory “sorry” from a heartfelt apology is striking. In general, people do not turn off their instincts when reading an e-mail. The problem is that there are no physical cues so we read into it what the writer meant from the words alone, the context of the e-mail, and a variety of other factors that are probably wholly irrelevant to the sincerity of the offer. In a worst case, the lack of any physical cues could lead to a complete disconnect between what the sender intended

Effective Use of the Anchoring Bias In Negotiation

January 16, 2022

In mediation, like all negotiations, there is often a reluctance to be the first to set out a number, whether that is an offer or a demand. Sales people are taught that this is a mistake because the first number has a significant influence on the buying decision. Consider the effect of the MSRP on the car buying/pricing decision. Research confirms that anchoring a negotiation by making the first realistic offer/demand has a significant impact on where the negotiation settles. What is Anchoring? An article from the Harvard Program on Negotiation’s Katie Shonk defines anchoring bias as “the common tendency to give too much weight to the first number put forth in a discussion and then inadequately adjust from that starting point, or the ‘anchor.’” The article refers to a Harvard Business School simulation in which one student (playing the role of an employer) spent time before the actual negotiation

Science Says Get Out of Your Dead-End Relationship

January 15, 2022

In spite of the headline this blog is not suddenly offering relationship advice. Sadly, I see insights into negotiation and mediation everywhere. That must be explainable by some known cognitive bias but that’s not the point. This article on relationships popped up in one of my feeds and its lessons for the negotiator are obvious. People (and mice, and rats) over-value sunk costs in their decision-making processes. Time for us to value the future more. Citing a 2018 research paper published in Science magazine “researchers found in experiments on mice, rats, and humans that the higher the sunk costs in a situation, the stronger their will became to keep pursuing a desired result. The paper describes this tendency as a ‘cognitive bias [that has] persisted across evolution’ despite its relative lack of utility in good decision-making.” In mediations, whether as an advocate or as a neutral, I often see this

Elon Musk Thinks Every Child Should Learn About These 50 Cognitive Biases

January 4, 2022

In a recent tweet, Elon Musk suggested that human cognitive biases should be taught to everyone at a young age. https://twitter.com/elonmusk/status/1472647410568642564 Setting aside the early childhood education question, there is no doubt that understanding our cognitive biases makes us better decision makers. And better decision-makers improve negotiations and result in better outcomes in mediation. Did you know there are 50 of them?

The Skill of Re-Thinking

January 3, 2022

I want to share a story I found in Professor Adam Grant’s book “Think Again.” The book is about the “skill” of re-thinking — critically and objectively evaluating — what we believe. To illustrate how difficult this skill is the book’s Prologue tells the story of Wagner Dodge and how he survived the Mann Gulch fire of 1949. In 1949, 15 smokejumpers parachuted into a wildfire in a Montana forest. The firefighters’ mission was to dig a fire break to contain the fire. As they headed toward the fire, they saw that it had leapt across a gulch and was heading straight for them very quickly. When they realized they couldn’t contain the fire they attempted to retreat back up the slope from where they had come. When they got within a couple hundred yards of safety, the crew’s foreman, Wagner Dodge, determined that the fire would overtake them before

Negotiation Lessons from the U.N.

December 12, 2021

The Harvard Program on Negotiations (“PON”) recently published an article describing some interesting tools that should be considered in multi-party dispute resolution settings. The article describes some of the tactics used at the U.N. Climate Change Conference in 2015. The article can be found here. As an aside, anyone engaged in negotiation for a living (and that’s all of us) should be registered for the PON’s free newsletter and articles. The PON article describes three tactics: confessionals, informal informals, and indabas. One of many take aways from these tactics is that they open space for all of the parties to be heard and contribute. Whether these tactics have a place in civil case mediation is an open question but their objectives certainly do. The article can be found here.What is obvious in virtually every multi-party mediation that I have facilitated is that there are layers of complexity in the relationships

Bracketology

July 4, 2019

In virtually every mediation that bogs down, I am asked about the use of brackets. Brackets have their place but to state the obvious: the use of brackets will not change parties’ calculation of their BATNA (Best Alternative to Negotiated Agreement), will not affect their underlying interests, or their perception of the right or wrong of a settlement. These are the real drivers toward settlement and every advocate — and mediator — should address these issues directly with their client. So, what purpose(s) does bracketing serve in a negotiation? What are brackets? Bracketing is essentially conditional negotiation. One party suggests that they will offer X if the other party agrees it will demand Y. Instead of making an incremental offer or demand the parties make conditional offers and demands conditioned upon the other party’s response. In truth every demand and countering offer is a form of bracket. But brackets as

Dealing With A Competitive Approach in Mediation

October 4, 2018

In my mediation practice I have found that cases are much more likely to settle when the parties approach the process collaboratively. For many advocates, their role in the opening session is to soften the other side. This generally means some version of a toned down jury argument. These statements are almost always followed by an unconvincing statement that they are present in good faith to try and settle the claims. The unstated but clearly understood meaning is we are here to settle “as long as it is on our terms.” In my experience, this is not the best way to get adversaries to listen, which should be your first priority. In this excellent article, Jeffrey Krivis, presents a comprehensive strategy for developing a collaborative approach to settlement negotiations when confronted with a competitive approach on the other side. Following extensive computer testing of the Prisoner’s Dilemma, Professor Robert Axelrod

How to Win Every Mediation

September 29, 2018

Any article on winning must start by defining the term. Unlike most of what we do as litigators, mediation never results in an absolute “win.” Some settlements feel more like wins than others and settlement alone is not the right judge of win or loss. With motions, trial, or arbitration it is usually possible to distinguish a win from a loss, even when there is some kind of compromise verdict. However, in mediation if the parties reach an agreement, it is always a function of compromise. So, how do you define a win in mediation? Of course there are many possible definitions of a win: e.g., Fisher & Ury would define a win as a negotiated settlement that is better than your BATNA. After hundreds of negotiations as both a neutral and an advocate, I do not believe there are any universal definitions of win and loss; each party goes

Blog