I had the relatively rare opportunity of working on two mediations over the past two months which could not have been more different. The first, a fraud case, resulted in a settlement while the second — an intellectual property case — continued on and has since grown even more contentious after the parties failed to settle. While the different outcomes could have been due to an infinite number of factors, the most striking differences between the two mediations had nothing to do with the legal strengths and weaknesses of the respective parties’ positions, nor any typos or blue booking errors in the parties’ mediation statements. Rather, the most striking differences, which proved to be pivotal to the outcome of the mediations, had everything to do with the following factors: (i) the negotiation strategies of the opposing parties’ counsel, and (ii) the abilities of the mediator.
DON’T NEGOTIATE AGAINST YOURSELF, BUT TAKE COUNTER-OFFERS SERIOUSLY
While I won’t attempt to provide an overarching guide to negotiation strategies — as there are entire books on the topic — one crucial point is to not negotiate against yourself, but to not take that truism too far. Both parties at each mediation had clearly internalized the rule not to negotiate against themselves, as no party was willing to make a lower offer if their adversary had failed to accept a prior without a making a counteroffer. The difference between the successful and unsuccessful strategies: one party was willing to consider reasonable counteroffers while the other was not. The party unwilling to move broke the momentum of the mediation, and ultimately led to its termination. While it is ultimately the mediator’s job to convince the parties to move from their respective positions, the parties should be willing to consider reasonable counteroffers in order to make the mediation worthwhile and prevent a waste of everyone’s time and money.
FIND THE RIGHT MEDIATOR FOR EACH CASE
Stating the obvious, a skilled mediator is crucial to a successful mediation. However, choosing the right mediator before the mediation happens is more complicated. Having a mediator who is experienced with the subject matter is important as it lowers the learning curve necessary to be fluent in the subject matter of the mediation, and to perform one of the primary functions of a mediator — explaining the parties’ respective strengths and weaknesses in order to convince the parties to move.
The mediator at the first mediation had honed this skill over many years, and was able to get through to the parties in order to haggle them down from their opening demands and prevent a walkout. In contrast, the mediator presiding over the second mediation was not as close to the facts, and was not able not able to quickly respond when the parties dug in to their respective positions.
All in all, the parties must remember the reasons they came to mediation in the first place — to arrive at a speedy and reasonable resolution of the action, even if that means that neither party walks away completely happy.
David Forrest is an attorney for Balestriere Fariello. He graduated from Benjamin N. Cardozo School of Law in June 2018. David works on all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach him by email at david.a.forrest@balestrierefariello.com.