Both sides need to be sufficiently prepared about the expectations of the other.
An effective mediation advocate needs to put the client’s interest first, and match the negotiating strategy to the objective by:
· keeping an open mind;
· forming an understanding of the process;
· learning about the procedure;
· being prepared in all aspects of his/her client’s case;
· understanding that the legal framework of the dispute may be only one aspect of the parties’ interests;
· being receptive to solutions which are outside the legal framework of the dispute (i.e. thinking outside the box); and
· using the Mediator as a tool with which to obtain a benefit for his/her client, rather than seeing him/her as an obstacle.
‘A lawyer who
concentrates on legal questions may miss entirely the important commercial
interest, not only of his client, but those of the other side that might prompt
an advantageous settlement. Equally dangerous is the lawyer who is too sure of
himself. He neglects relevant information. He ridicules good suggestions
because they have been made by the other side or by the Mediator. He may
consider that his client has already invested too much time and money in the
conflict to settle in mediation; or he may have given bullish advice before and
be fearful of challenging his own client in a private session to re-adjust the
unrealistic expectations held by the client which are likely to be exposed in
the process as it continues.’
(Professor Andrew Goodman, Bar Council ADR Committee Mediation Advocacy Training Day, 25 May 2013).
To settle at mediation parties in dispute must compromise. To maximise the opportunity for settlement on mutually satisfactory terms, instead of preparing to go to war (i.e. Trial), each party and their Mediation Advocate (i.e. legal representative) must prepare to do a deal. As I explain in paragraph 12.2 of my book the ‘Contentious Trusts Handbook’ published by the Law Society in 2020, ‘The acme of preparation is development of a “settlement range” based upon:
(a) a realistic legal risk analysis; and
(b) an accurate commercial analysis,
so that a concrete opening proposal can be made either to your opponent directly, or through the mediator. This requires a white-board/flip-chart for sketching out the parties respective expectations in order to plot and discover your Client’s potential “settlement range” between:
(a) the maximum net capital value of his claim; and
(b) his BATNA (‘best alternative to a negotiated agreement’ – which in litigation is proceeding to trial, i.e. the amount below which he will walk away from the table).’
This methodology rests on the observation that it is always better psychologically to be prepared to advance to a known position than to retreat into the unknown.
A good deal has to provide benefits that satisfy each party’s needs. Without that aspiration, why would any party negotiate. Without assurance of benefit why would anyone sign up to a deal?
See also, the ‘Mediation of Probate & Trust Disputes’ page of my website, www.ihtbar.com.