the mediator’s perspective - itam review uk conference 2016

The mediator’s perspectiveHow to negotiate contracts

Guy Tritton (gtritton@hogarthchambers.com)

Mediation and Negotiation

GOAL: A binding agreement

BACKGROUND • Litigation or dispute (mediation)• Potential opportunity (contract)

WHY? Better than the status quo

MEDIATION: 90% success rate (on the day and shortly thereafter)

The Mediator’s ToolBox

• Catharsis + Empathy• BATNA• WATNA• Interests not positions• Brainstorming• Reframing• Heads not Long Form• Optimal solution

EMPATHYWhat is the other side thinking?Why would they be thinking like that?Will they lose face if they have to climb down?What would I do in their position?

CATHARSIS• Allow other side to vent• Acknowledge their feelings without

validating their stated reasons

BUYER’S RANGE

ZONE OF POSSIBLE AGREEMENT

SELLER’S RANGEBetter for Seller to Walk

Better for Buyer to Walk

LOW PRICE HIGH PRICEBATNA: The price at which seller does not make enough profit to make deal worthwhile

BATNA: The price at which buyer cannot make enough profit on resale to make deal worthwhile

SELLER: OTHER FACTORS• Likelihood of better

deal from others• Deal gives me market

presence• Deal gives me other

opportunities

BUYER: OTHER FACTORS• Better deal from others?• Does no deal foreclose

other deals?

DEFENDANT’S RANGE

ZONE OF POSSIBLE AGREEMENT

CLAIMANT’S RANGEBetter for Claimant to Litigate

Better for Buyer to Litigate

• Net recoverable costs (+damages) if I win

• Net recoverable costs if I lose• Chance of success• Management time spent on

litigation – foregone opportunities

• Net recoverable costs if I win

• Net payout (costs+damages) if I lose

• Chance of success• Management time spent

on litigation – foregone opportunities

LITIGATION: MEDIATION

• JANE I need 75% of assets as I will be looking after the 2 children

• JOHN You are just using that as a ploy for more money. You will just spend it on yourself

REFRAME • JOHN You want your children to grow up and be provided for?• JANE Leaving aside the children, fair for you and John to have

the same amount?• JOHN If 25% goes each to the 2 children, then you are both

getting the same 25%. Sounds fair?• JANE I assume you have no problem in transparency as to

what is spent on children (not John wants to see what you are spending – implicit accusations)

INTERESTSBoth – children’s needsFairness between husband and wifeJohn – misuse of money he gives to Jane

REFRAMING

Brainstorming• Answers which meet

parties’ interests/concerns

• Can you think of a way to solve my concerns/cater for my interests?

• Non-judgmental

Don’t try and agree everything at once• Don’t fall out over the small

print• Keep the lawyers at bay• Binding Heads with good faith

negotiations for Long Form• Economic vs legal terms• Law of implied terms may “fill

in” gaps.• Funnel to Long Form• One step at a time

Improving the Deal• Can I improve

the deal which I have in the bag?

• Have we exhausted all avenues of cooperation?

How to negotiate contracts

Guy Tritton (gtritton@hogarthchambers.com)