Five Common Mediation Mistakes and How to Avoid Making Them

Some people don’t believe in ‘mistakes,’ or as Bob Ross, host of The Joy of Painting, famously said, “We don’t make mistakes, just happy little accidents.” Meanwhile others acknowledge that there are mistakes, but see them as a learning opportunity or, as Henry Ford put it, “The only real mistake is the one from which we learn nothing.”

While that all may be true, there is no need for you to go to the trouble of making the same mistakes or, er ... having the same happy little accidents, as others haver already done. Rather, here’s a chance to learn from what I have seen in my mediation practice and avoid these five poor choices that can lead to missed opportunities, unnecessary costs, and unwarranted headaches.

Number 5 - Starting Too High or Too Low

Many negotiators won’t make the first offer for fear of making a mistake. But, if you think careful about your first offer beforehand, it can put you in the driver’s seat. Nobody wants to ‘leave money on the table,’ but if you hang the meat too high, the dog won’t jump! So what do you do?

First, do the math. What are your serious alternatives and what will they actually cost? Really push yourself on these numbers and see how high, or low, can get them.

Second, as rapper Ice Cube famously said, "check yourself before you wreck yourself." Are you being over-confident about your case? Or, do you have the exact opposite problem and underestimate yourself?

Find someone else to talk with about the issues in the matter and what they mean - someone who will be honest with you and beg them to be harsh with you.

Finally, be realistic. Be realistic about what you would like to see from this situation and what you can walk away from without regrets … well, regrets about this negotiation, anyways.

Follow these three steps, and you get to set the tone for the negotiations, anchoring your opponents with the number or terms that work for you, not them.

Number 4 - Failing to Prepare

Not spending adequate time preparing for a negotiation will prolong the process and be costly - both in dollars and taking unnecessary time you could be spending on more productive matters. So, let’s discuss what you need to do to prepare.

The first thing you want to do is to review your position with a critical eye. Think about the counterfactuals and arguments your opponents are likely to make. Try to argue their side, to understand where they may go. If it’s a case, such as in a mediation, then you’ll want both the lawyers and the clients to take the time to do a thorough review of costs and benefits of the case.

Next, assess who you are negotiating with, the realistic strengths and weaknesses of their case and, if possible, assess their personality types. If you’re unsure of how to approach this, then read this article or check or this video for details on how.

Finally, prepare for what to expect. If you haven’t been through the process before, then find someone who has and ask lots of questions. And, consider how your experience may differ from theirs.

If you’re a lawyer, then prepare your client for the worst in the negotiation and the worst if the case has to go to trial, so that they are pleasantly surprised. Otherwise, your client may have unrealistic expectations and the results can be disastrous.

Number 3 - Failing to Account for Increasing Risk

Viewing each risk in a negotiation in isolation can give you a false sense of the weakness of your position and the value of your opponent’s. Accounting for changing risk, as you go, is important and we should talk about how to do that.

There are two main errors that people make when considering the risks involved in a negotiation.

The first one is to not consider the compounding effect of multiple risks. If you have four things that need to happen for you to win and each of those four things have a 50-50 chance of occurring, then you don’t have a 50% chance of success, you have a 6.25% chance. Now, factor in that very rarely is it ever truly a 50–50 chance and that people are, generally, very bad at properly assessing risks. Now how likely do you think it is that all four things that you need are gonna happen in the way you need them to happen to justify not reaching a settlement?

The second consideration is the increasing risk as time goes on. These can be anything from changing societal pressures to the reduced reliability of witness’s memories. For example, consider what happens as legal procedure does it work to a case and causes you to go to trial another year beyond when you thought you would.

How long ago was the actual incident?

How long ago was the original contract signed?

What happened to your witnesses memories?

Or, what hastened to the witnesses themselves - have they passed away?

These are just some of the examples of why it is important to account for the changes in the risk of a dispute as time goes on.

Number 2 - Making a Ultimatum and Not Backing It Up

An ultimatum, such as a best and final offer, can seem like a good idea to show strength in the negotiation. However, if you don’t do it with sufficient research behind you, it can blow up in your face. But, this also means that you can use your opponent’s similar mistake to your advantage. So, let’s talk about the planning that you’re going to need to do.

First, do the math. Is this really the amount that you’re going to walk away over? Have you done as much investigation into what you would spend for the remainder of the dispute as you would have over an investment of a similar dollar amount??

Second, talk the talk. That means following up by authorizing your counsel to spend what it would take to finish the case and making sure you have the funds available to do so. If you’re not willing to ‘write the check’ for the amount required at that moment, then do you really mean your ultimatum?

Third, walk the walk. Take the actions necessary to finish this off. Perhaps you start selling stock? If you’re not willing to send the sale order from your laptop in the mediation room, then why not? Are you really ready to back it up? I don’t mean to challenge you here - that’s for your opponent to do. I’m just here to tell you how it’s going to play out.

Now, what do you do if your opponent decides to make such a poor choice, themselves? In that case, there are two things that you should do.

First, give a little, to get a lot. That means, if you give a little it should entice them to continue negotiation and when that happens, they’ve lost the ability to issue any further ultimatums.

Second, if that didn’t work, then use an exploding offer - your own ultimatum. An exploding offer is one that is time limited, such as - we’ll pay $1 million dollars for the house if we sign this agreement by 3 PM.

Yes, this is an ultimatum. So, when it comes time for you to give an ultimatum you need to be prepared to back yours up while they will have failed to make theirs stick.

Number 1 - Treating Mediation Like a Trial

Often, the goal of mediation is to reach an end to a dispute or, failing that, to resolve some parts of the dispute. But, sometimes, the lawyers don’t know how to end it or how to let it end. They treat it like a trial and believe that presenting the strongest and most aggressive case will result in a victory. But, proving your case at the cost of a speedier and more cost-effective settlement may be an almost pyrrhic victory.

Mediation and litigation are different, and a lawyers’ role in each is different, as well. There are three key ways in which mediation must be treated differently than a trial to be successful.

First, let’s start with the mediation brief. This is the chance to determine the issues that need to be addressed so the case can be resolved.

Also, it’s an opportunity to identify potential, hopefully creative, structures for settlement that could work. Spending the time arguing the points of why your client is right and their opponent is wrong is wasteful and it advances neither of those. Save that for the judge, if you should find yourself ending up in litigation. So, don’t waste the opportunity by just treating it like a trial brief with a settlement offer section stapled on.

Second, treating mediation as an adversarial event will limit its effectiveness and, likely, foreclose the opportunities for joint sessions. A mediator will try to avoid wasting time on joint sessions if the parties are just going to bark at each other.

But, joint sessions are where I have seen the most benefit - from people having an ‘ah-ha’ moment of realizing that how the other party sees the case may be appealing to others - including future jurors - and judges. So, don’t foreclose the opportunity for a joint session, as it can help in the exchange of information and allow for brainstorming ideas.

Finally, let your clients play an active role. Their input and feedback during the negotiations are critical to ensuring that their interests are met and that a negotiated deal is acceptable. Also, it’s important that they see and understand the strengths of the other sides case or else a settlement won’t stick and all will be back, fighting the same fight again, soon enough.

If you have any questions on this or other mediation topics please check out the website for videos, other articles, and MCLEs at?CoherADR.com.