In my last piece I looked at some behaviours which can both alienate your mediator and be unhelpful to your client. In brief they were:
- Hectoring opponents
- Bulldozing the client
- Failing to negotiate
- Not thinking ahead.
Fellow mediators got in touch to say how much these points resonated with them and to add a few more “pet hates”, such as parties failing to think through the impact of taxation on settlement proposals or not having a plan as to how to fund an offer.
All of these tend to stifle momentum and jeopardise progress.
So today, I wanted to look at the other, more positive side of the coin and pick out three ways in which advisers can support the process.
Good advisers show curiosity about the other side’s case. They ask questions rather than make categoric pronouncements. They explain what they need to hear from their opponents in order to develop their thinking. They know that this does not mean that they accept the other side’s case but rather that it is worth understanding why that case differs from theirs. This approach is far more efficient at drawing out weaknesses in the other side’s case than berating the opposition.
It can also help with privately recognising weaknesses in your own client’s position – which leads me to my second point.
We frequently see advisers running into problems in trying to manage their clients’ sky-high confidence and expectations on the day. Preparing your client for a realistic range of possible outcomes before the mediation can avoid simmering conflict between you on the day, and give you more latitude in the negotiations.
So mediators recommend that your preparation involves admitting the difficulties in your case to yourself, and to your client, and making a plan as to how to deal with those difficulties, rather than waiting until you are pushed into a corner.
Involve your mediator
High on any mediator’s wish list is being invited to to sit in on private deliberations. It is tremendously helpful because it gives the mediator a high level of understanding about what is and what is not going to be possible. This private information is not shared with the other side but it can nonetheless help the mediator have productive discussions in the other room, i.e. discussions which might lead to a proposal which chimes with your client’s thinking.
Again, I’ll be really interested to hear your feedback.