The folloiwng is a brief extract from the ‘Mediaiton Advocacy Skills Section’ of my forthcoming book, the 2nd Ed of the ‘Contentious Probate Handbook’, which I am writing for the Law Society:

‘This is a technique the author applied when negotiating a major contract for Rolls Royce in Malaysia in 1990, which was awarded. The process began at the end of a day during which two teams of negotiators had sat on opposite sides of a conference table from each other. The author asked the lead legal negotiator to stay back on his own after everybody else had left the room. He agreed. The author then sat at right angles to this negotiator. At first, the other negotiator was uncomfortable doing this. However, once we started talking, his focus shifted from where we were sitting, to what we were talking about. This meeting between us, i.e. on our own, and sitting at right angles to each other at the end of the conference table, became the first stepping stone in establishing a working relationship between us as professional negotiators, based upon mutual respect and trust.

In their book, ‘Getting Together – Building Relationships As We Negotiate’ (1988), Roger Fisher and Scott Brown advocate an approach which they call an ‘Unconditionally Constructive Strategy.’ They argue that in any relationship we want to be able to take steps that both:
(a)          improve our ability to work together; and
(b)          advance our substantive interests.

The strategy, which is counter-intuitive, consists of six ‘guidelines’:

(i)  ‘Rationality’ – Even if your opponent is acting emotionally,   balance emotions with reason.
(ii)  ‘Understanding’ – Try to understand your opponent, even if he misunderstands you.
(iii) ‘Communication’ – Even if your opponent is not listening to you, enquire, consult and listen to him.
(iv) ‘Reliability’ – Even if your opponent is trying to deceive you, neither trust nor deceive him, instead be reliable, as integrity builds trust and confidence.
(v) ‘Non-coercive modes of influence’ – Even if your opponent is trying to coerce you, neither yield to coercion, nor try to coerce him. Instead, be open to persuasion, and try to persuade him, i.e. disarm him, then you can both enter into a constructive dialogue sitting ‘side by side’ together.
(vi) ‘Acceptance’ – Even if your opponent rejects you and your concerns as being worthy of his consideration, accept him as being worth dealing with and learning from.

When and how to use this paradigm shifting strategy, is of course a matter of instinct, judgement, and timing.’