The role of a mediator is unique. He or she seeks to bring the parties together, without becoming a party to the process, whilst at the same time being intimately involved in the process. The parties may, however, sometimes see themselves as negotiating with the mediator. This is perhaps understandable. Apart from the joint opening session (if there is one), they only see and talk to the mediator, unless the mediator brings the clients or their experts or advisers together at different points.
This lack of “visibility” does not exist in a direct negotiation. The parties therefore need to relate to the mediator in a way that they would hopefully do in a face to face negotiation. The basic elements are the same but the beauty of mediation is that it is perhaps easier to do it with the mediator than an opposing party. What are those elements?
- In any negotiation, it is important for the parties to establish a relationship very early on. They need to get a feel for the person they are negotiating with. How does a party establish that relationship with the other side when in a mediation? Openness and sincerity. A constructive negotiation is built on honesty and integrity. You are more likely to succeed if the others involved in the process respect and trust you. Use the mediator to help you build that trust by being open with the mediator and authorising him or her to communicate as much as possible openly with the other side.
- Neither party holds all the aces. It may not be a level playing field, but it is the same playing field. Both parties want to achieve a good outcome, but how do they get there? Understanding what all parties need is essential. If you think only of yourself, you are unlikely to be a good negotiator. Working for a win-win is essential. Black and white thinking is limited thinking. Think outside the box, and be creative. Use the mediator to help you think through your ideas.
- Restrain your inner child. Childishness merely encourages similar conduct. Set an example; take the high road. Don’t argue; understand. Silence can be a powerful tool. Reflect on what has been said, and find the rhythm of the party you are negotiating with. These factors are relevant even though you are negotiating through the mediator.
- You often hear…”I’m not making the first offer” or “I’m not bidding against myself”. Why not? Why not set the foundations for the negotiation? Be willing to give the mediator the first offer.
- Don’t dig holes. “I couldn’t possibly advise my client”, or “my best offer, and not a penny more” or “I have to leave by 4pm to catch a train”. The best negotiators are co-operative, not obstructive. “Never again” said Sean Connery after Diamonds are Forever, only to star 12 years later in “Never say Never Again”
If a mediation is different to a direct negotiation, understand that the mediator is doing it both for you and with you. Get the best out of the mediator by enabling him or her to communicate your interests in a way that a successful negotiator would do, and by responding to the other party’s proposals in a constructive manner.
Of course just because a mediator is there does not mean you should not talk directly to the other side. The point is not to hide behind the mediator but to use him or her to help create a good conversation. As often as possible be willing to engage in direct negotiation with the other side with the mediator present to summarise what is being said, generally aid the communication and keep the process on track.