It is almost inevitable that parties take an adversarial position at the beginning of a mediation. “These are my rights and I’m going to give you very little and very slowly”. Mediators will encourage parties to co-operate in finding a solution to their problem, and experienced Mediators will do their best to avoid parties ‘salami-slicing’, or ‘peeling the onion’, (a multitude of small moves towards a settlement figure). Salami-slicing causes frustration and, sometimes anger, and ignores co-operation.
There is a better way but before outlining it I want to make three statements:
- The role of the Mediator is to give the parties the best shot at doing a (their) deal
- One of the effective Mediator’s key skills is the strategic use of information
- The later the offers are made, the quicker the deal is done.
The significance of the first statement is that mediation is an assisted negotiation. Deals are the purpose; the Mediator is there to create an environment where deals can be made.
The significance of the second statement is that the Mediator can help (or hinder) the parties’ progress to a deal by the use of information – when to hold, when to give, when to reframe. The Mediator is in a unique position of gathering information from both/all sides and so knowing more about the negotiation (the needs, the drivers, the boundaries) than anyone else in the mediation. The strategic use of that information is key to the move towards settlement.
The significance of the third statement is that, in my experience, first offers dictate the scope, length of time and attitude of the parties. Offers can be in the Insult zone, Credible zone, Reasonable zone or Settlement zone. If first offers are in the Credible or Settlement zones, deals can be done in three or four moves. If in the Insult zone, deals will take at least a dozen moves, if they are done at all.
So how does a Mediator get first offers into the Credible or Settlement zone?
In training Mediators we talk about the Exploring Phase (Phases being Opening, Exploring, Negotiating/Bargaining, Concluding). We say this Phase is vital to setting the foundations of any deal as it establishes what is beneath the parties claims and responses and so what their real needs are. If the Mediator does justice to this Phase of the mediation, and the parties see that their needs are likely to be met in the emerging deal, they will not want to sabotage the outcome by making silly offers. It will be much easier for the Mediator to encourage offers in, or close to, the Settlement zone. Parties will become confident that this is going to work as the shape of the deal (ie the components that meet their needs) emerges. There does not need to be much detail in the shape, yet; just enough for parties to see that they have been heard and the emerging deal is something that they can live with. They will want it to work, and that is the time for first offers, and responses, to be tabled.
It is like pieces of a jigsaw puzzle – the pieces are recognised but not necessary fitted into place, but the pieces are there. So the shape of a deal, with it’s various pieces recognised but not necessarily fitted together, will give the parties confidence to pitch sensible offers, not wanting to lose the chance of settlement. And if the first offer is sensible, sending the message that ‘we are here to do a deal’, then the response is likely to be sensible too. That being so, deals are usually done in just two or three further moves.
Whereas offers made too early will almost always be from an extreme position, cause frustration and be time consuming and bad-tempered.
I know which route I prefer!
More papers by David Richbell and the MATA Faculty can be read on http://mata.org.uk/resources/papers/