Anytime I have tried to negotiate anything, be it the purchase of a car or house or a truce with my wife or kids, I always wished I could read the other person’s mind. Wouldn’t it be great if we knew from the get-go how much the seller of a house was really willing to lower his price to sell it?
Is it possible?
Let’s face it, down to its bare essence, mediation is an exercise in reading your adversary’s mind. That’s why I always learned, and tell litigants now, don’t read too much, if anything, into the first offer. You must start somewhere, and you never know until you ask.
Offers are meant to test the other side, to help you read their mind and to assess where things are going and how fast. The most important offer is the “last” one.
So what can you do to help you read the other side’s thoughts? What negotiation techniques can you use to get a better glimpse of where the other side is and might go?
The tempo of our offers: Pace.
Do you go up or down in small increments? Larger ones? A mix? Depending on the circumstances, changing the pace of the offers can help you better understand the other side’s thoughts. It is a test.
The “wince”
This is where you might really get upset and threaten to leave unless the other side moves in a more meaningful way. You show righteous indignation.
Of course, there had better be a good reason for this, otherwise you just get an Academy Award nomination and nothing gets settled.
Bracketing
This is where you indicate to the other side that you will go up to this number if they go down to that number.
For example, let’s say the plaintiff is at $750K and the defendant is at $75K two hours into mediation. The plaintiff might propose that he will go down to $600K if the defendant goes to $200K. It gives the parties an idea of where each is willing to go to settle the case.
Credibility
One of the maneuvers I advise against is communicating “this is my bottom line” unless it really is your bottom line, or darn close to it. Otherwise, no one believes you. Credibility invites more honest communication.
Of course, if someone pigeon-holed the case as nuisance value and does not intend to meaningfully negotiate, you will probably know this early on. Test it anyway, and if it doesn’t pass, it might be time to get ready for trial.
On the other hand, if you say you will make a more meaningful offer if the other side does, then be true to your word if the other side responds favorably. Credibility is your best tool.
None of us can read another person’s mind (at least not most of us - unless you are my wife, who always seems to know things I thought only God knew about) or bend spoons. Nonetheless, a good mediator will help guide the parties to test information and positions to hopefully bring closure to a case.
Good luck!
Musa Farmand is a certified circuit civil court mediator.