Mediation Tip: Concessions to seal the deal: Often, people in a negotiation will emphasize one point that is a "deal breaker". The other side rejects. Does the mediation end then? Not yet!

August 13, 2013

Studies confirm the importance in a negotiation, of everyone feeling heard.  Thus, It is important to listen to what is important to the other side, and why.  Otherwise when a party feels their needs are unimportant, it becomes easy to withdraw or give up.  Understanding why something matters to your opponent, makes it possible to reconsider the rejection of their request, or to come up with other ways to accomplish the same thing.  Perhaps there is some compromise that can be made.

For example, if plaintiff requests a letter of recommendation from a former employer, the response will likely be that it goes against company policy, would set a bad precedent, may put the company at jeopardy of giving out a false recommendation, etc.  However, the employee needs recognition of all of her years of hard work for the company.

If that employee  has some positive performance reviews, maybe a letter can be drafted incorporating the actual positive statements from these evaluations.  The letter would then be factual, positive, and not need the words "I recommend".     In a recent mediation, the parties were vastly apart in their numbers; however, the company was adamant that it would be put out of business if it had to pay the sums plaintiff was seeking.  Plaintiff was finally convinced to reduce his number, conditioned upon seeing company financial records, which the company rejected.

Plaintiff then mistrusted defendant's assertion of its financial condition.  I kept the parties negotiating on everything else, leaving that important term until the end.  Once we reached accord on the number, the company was willing to show its financials, but it was concerned about the information getting into the hands of the disgruntled plaintiff.  We worked out an agreement whereby one of the attorneys could review everything pursuant to a nondisclosure agreement.

What started out as a "no" turned into a "yes" on an important term for the plaintiff, once we could meet everyone's concerns.


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