PBCBA BAR BULLETINS pbcba_bulletin_january 2018 | Page 6
ADR C o r n e r
TEN TIPS FOR GETTING THE MOST OUT OF
YOUR MEDIATION PROCESS
BRUCE A. BLITMAN
During the past 30 years, mediation has
become the most popular Alternative
Dispute Resolution (ADR) process for
resolving disputes. Lawyers, insurance
companies, risk managers, and corporate
legal
departments
use
mediation
frequently to resolve claims and lawsuits.
Mediation is an “assisted negotiation”
in which the parties and their counsel
involved in a dispute sit down with
a neutral, impartial person called a
mediator to reach a mutually acceptable
agreement. The mediator works with the
parties and counsel to help them fashion
their own acceptable solution to their
dispute. Negotiating is an important part
of every attorney’s career. Whether you are
dealing with opposing counsel, insurance
adjusters, clients, partners, or staff, you are
still constantly negotiating. The quality
and success of your practice can be directly
affected by your ability (or inability) to
effectively conduct negotiations.
During the past 28 years, I have been
privileged to mediate thousands of
disputes. Many have settled due to the
exceptional negotiating skills of the
participants.
Unfortunately,
others
have not been resolved because of the
participants’ ineffective negotiating skills.
I hope that the following ten tips will help
you and your clients hone your negotiating
skills and enable you to get the most out of
your mediation experiences:
1.
Know what you want. Your clients
cannot get what they want from others
if you do not know what they want for
themselves. First, establish a specific goal
for negotiation. Consider what it will take
to satisfy your client’s interests, needs, and
objectives. If you are representing a client
on a contingent fee basis, wouldn’t it be
helpful to know as soon as possible that
your client only wants an apology, rather
than money damages?
2.
Develop a game plan. Once you
know what your clients want, establish
a negotiating strategy to achieve their
objectives. Before you present your first
offer, consider where you and your clients
want to start and where you want to finish.
Give yourselves some room in which to
move.
3.
Know what the other party needs. It
takes two to tango – and to negotiate. To
reach an agreement, all parties must feel
that some, if not all, of their interests have
been satisfied. Your negotiating partner
also has motivations and concerns.
Ask open-ended questions to gather
information and to understand the other
side’s positions and perspectives.
4.
Be an empathetic listener. There
are hundreds of courses about public
speaking, but very few of them teach us
how to listen. Attentive listening enables
us to better understand the motivations of
others. Make eye contact when someone
else is speaking. Pay attention to the
words and language that they are using.
At one of my mediation training courses,
a student once told me that her child
would admonish her by saying, “Mommy,
listen to me with your face!” when she was
distracted and not paying attention to her.
What wonderful advice for us all.
5.
Attack the problem, not the people.
Focus on finding solutions to your shared
problems. Screaming at the other party
may let off steam, but it is not conducive
to effective joint problem-solving. Be
courteous and tactful.
6.
Treat the other side as your ally, not
your enemy. Your negotiating partners
at the mediation may have to persuade
others in their organization to agree to
your offer. As your friends, they can sell
your proposal; as your enemies, they can
sink it.
7.
Educate, don’t intimidate. Be
prepared to explain, document, and justify
to your negotiating partners why they
would be well-advised to accept your
client’s proposal. Help them understand
your client’s position.
8.
Be patient and persistent. Don’t
be angry or insulted if the first offer you
receive is not what you and your client
hoped it would be. Treat this proposal
as the first of several in the negotiating
process. Slow but steady movement creates
momentum, which can lead you down the
road to resolution and agreement.
9.
Consider the consequences of
no agreement. Think about what could
happen – both good and bad – if your
clients are unable to agree. Can they afford
to “walk away” from the table, or are they
desperate to make a deal now?
10.
Be flexible and creative. The
Rolling Stone’s frontman, Mick Jagger,
made the phrase “You can’t always get
what you want” famous. In negotiations,
this is often true. Always have a fall-back
position – that is, an alternative that
satisfies your clients and the other parties
enough to make a deal. Be imaginative and
“You just might get what you need.”
Bruce A. Blitman has been a member of The Florida Bar since 1982 and a longtime member of the Broward County Bar Association. He
recently joined the Palm Beach County Bar Association. Blitman has been a full-time mediator and ADR professional for almost three
decades. Since 1989, Bruce has mediated thousands of disputes throughout the state of Florida. He writes and lectures extensively about
the benefits of mediation and ADR. He can be contacted by phone at (954) 646-1128 or by e-mail at [email protected].
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