An Alternative to Litigation: “3 Effective Negotiation Strategies”

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“Ultimate excellence lies not in winning every battle, but in defeating the enemy without ever fighting…” –Sun Tzu.

 

As a mediator I continue to study the Sun Tzu’s the “Art of War”. Not because I support War/conflict but rather, I believe that to effectuate collaborative solutions one must be prepared for multiple manners of “warring”. The Art of War offers a great amount of wisdom that can be used in a variety of industries.  As a mediator I have observed disputants being counterproductive throughout a mediation conference because they are too focused on winning, although they both were very interested in avoiding a trial.  It takes a great amount of awareness to help those achieve what they say they want, without them feeling like they gave up what they need…

 

Negotiation opponents often think that the only way to negotiate is to intimidate and by a show of power.  There are a multitude negotiation approaches/styles and they all have distinct advantages and disadvantages. The following are the 3 that I’ve seen initially be more effective:

 

3 Negotiation Strategies

 

  • Reduce the Conflict – Conflict is expensive.  Before you engage in a lengthy litigation matter or negotiation effort, be honest and strategize on the business of conflict.  If there are a multitude of issues, try reducing them to the most essential points of conflict. Often when you have a chance to narrow down the issues that need to be address, you narrow down the cost/time that may be incurred.

 

  • “Enlarge the Pie”– A rarely used technique is to creatively broaden the options of agreeable outcomes. Often disputants only come to negotiate with limited ideas of what is owed or due to them. So, in turn they negotiate with a limited view of possible outcomes.  When you negotiate from a position of having plenty of outcomes you tend to be more flexible and reach agreement easier.  By “enlarging the pie” you create the tone that greater options are available to those with the willingness to seek greater options.

 

  • Separate the Person from the Issue – “If it is only business, keep it that way!” Behavior during negotiation is key, and perception is everything. When parties state “…it is just business, this is a simple case…”, I always expect more much more.  We are all human and therefore what should be simple can easily turn into frustration and lashing out when the other side just doesn’t see how wrong you think they are. Be mindful of harsh negotiations turning into name-calling or personality trait bashing.  To reduce the frustration/emotions, it is always better to objectively remain on the matter in dispute and not who is doing the negotiating.

 

Mediation is artfully delicate process and should be facilitated by a professional neutral with the unique skill sets that promote collaboration, party self-determination while encouraging negotiations.

 

Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator.  Mr. Zamor serves on several federal and state mediation/arbitration rosters and has a private mediation and ADR consulting company.  He regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.

 

3 Effective Negotiation StrategiesDownload

A New Year of Resolve:  Saying Goodbye to LAST-YEAR’S Litigation and Hello to THIS-YEAR’S Agreed Settlement

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By Stanley Zamor                                                                                                                                                            

“It’s 20XX.  Time to let LAST-YEAR go!  You decide.  It is time to accept and expect THIS-YEAR to be the year of RESOLVE!”  During the various mediations I facilitated in 20XX, a common theme I heard by participants to explain their discourse, was that 20XX was a year of build-up, peculiarity and conflicts that seemed to spiral out of control; so the parties (and their attorneys) were ready to settle.  Although parties, and their counsel, self-described the dispute(s) as being “simple”, as the mediation process progressed, simple issues revealed themselves more intractable.  As a professional neutral I am not surprised by parties being unrealistic about the simplicity of their issues (and their resolve).  Managing expectation is not a problem, and it is what a trained professional neutral is trained to do.

 

So, how do mediation participants leave the past and the old year behind (analogous to litigation);  and move forward like a New Year’s Eve countdown, eager to see the ball drop in Times Square, and at the stroke of midnight, be ready to usher in a new year, a new resolve, an agreed settlement?  The anticipation and expectations of a new year bring new hopes, new dreams, and the achievement of new goals.  But timing is the key; and unless participants are ready to reach a resolution, they will not settle.  To gauge unsure participants and their preparedness to settle, after their 2013 cynical statements, I offered for consideration, “…Preparing a mediation settlement agreement is like preparing for a new year, with New Year’s resolutions.  You craft your goals, and how you want your present and future to be; while litigation focuses on the past year that is now gone.  Litigation forces you to relive regrets, wrongs, missed opportunities and hurts.  Although litigation is your right, and allows you to receive a decision, others ultimately assign a value to your position, with which you may not agree.  Your hurt feelings and intangible concerns are rarely addressed in litigation; and the ‘I SHOULDAS, I WOULDAS, I COULDAS…But I DIDN’T…’ do not get expressed.  However, during a mediation session, there is usually an opportunity to address such concerns and that is when it becomes easier to start fresh, new, and agree to resolve the matter through an agreed settlement…”

 

After further dialogue and self-assessments, most of the participants saw the value of reaching a settlement agreement that day and were ready to resolve the matter.  I was told that after the mediation session, the settlement agreement created gave them the ability to move forward, onward and upward.  Holding on to the past through litigation felt like dwelling on the “yesterday”, it held them back; and also, living to litigate a case, continued to hurt more than help.  While creating and preparing a settlement agreement, helped set clear future goals, let them be heard and more importantly, allowed for forgiveness and the acceptance of an, “I’m sorry…”.  HAPPY NEW YEAR!

 

(updated, 2018)