Six Ways to be a Better Mediation Advocate – Later Stages of a Mediation

Mediation advocacy is about listening to build a foundation for persuasion and influence.

It is rare for a party to “succeed” by reiterating their arguments with increasing vehemence.

Getting a deal involves influencing and persuading the other party that an offer is in their best interests in all the circumstances.

Having prepared and opened the mediation well, what can be done in the following stages by the effective advocate?

Six things that skilled mediation advocates do in the later stages of a mediation are:

• Avoid “just cut to the chase!” The mediation has just started, making a good offer too early is the wrong offer.  Making offers without understanding something of what lies behind the other party’s position is shooting in the dark.  The right offer at the right time is founded on first finding out more about the other parties underlying interests. Listen carefully to what others are saying.  Recognise that time spent finding out what lies behind the other parties’ positions and demands is time well spent.

• Having found out more about the other part’s story, work on the general route to settlement and the broad shape of the deal before getting specific. Identify the main constituent parts, then work on the specifics of each part.  This helps to build momentum toward resolution, means that different aspects can be progressed at an appropriate pace and avoids getting bogged down in the detail prematurely.

• Be creative and try out ideas to broaden the scope for settlement. What else might be brought into expand the value available for the settlement?  Is there something that is of value to the other party at small cost to you?

• Making the first offer can help you by anchoring the negotiation range. It needs to be considered and credible.  Remember that everything that you do sends a message and what is most important is how the other parties hear the message.  Is your offer “insulting,” or will it be seen as a serious, if not yet acceptable, attempt to resolve the dispute.

• Offers are best if preceded by the reasoning behind them. Simply pitching a number, for example, will probably get a general comment and then a number pitched back.  Articulating a rationale encourages as more reasoned dialogue enabling the negotiation to focus on closing the gap.

• Go prepared for settlement and start drafting the agreement early. It is helpful take a template agreement to the mediation to be completed as a working document during the meeting, particularly if the resolution is going to be detailed and complicated.

The mediator is there to help you with all of the above.

Using the mediator to build the dialogue, either directly with the other parties, or through the mediator, means that the challenging conversations that need to take place can happen in a more considered and productive way.

A major commitment that the mediator makes is to keep private conversations with each of the parties private.  The most effective users of mediation recognise that candid conversations with the mediator in private enable ideas like these to be used most effectively.

Learn more about CEDR’s Commerical Mediation services below.