the mediator’s perspective - itam review uk conference 2016
TRANSCRIPT
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?
