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Selling Outcomes at Mediation

Date: November 7, 2012 Posted by Comments Off on Selling Outcomes at Mediation

Negotiation is all about selling outcomes.  Shorn of its trimmings, it is a process whereby one party tries to get the other to accept the terms they last tabled. There is a real art to this.

Sometimes, after moving further than they think justified, parties will dig in, however small the gap.  This happened at a recent mediation.  But then one side decided to play one last card. They amended their unseen draft settlement agreement.  They shrunk it.  Out went the boilerplates.  They also ‘balanced’ it by removing anything that could be seen as controversial by the other side.  To draft neutrally is pretty difficult.  But they managed it.  They then added their final number that had earlier been rejected.  I was asked to pass the draft to the other side who now faced a dilemma.  They had no issue with the drafting.  In fact, they positively liked some of it, but they were left with a number they had earlier rejected.  The choice was to either reject it again and have nothing tangible to show for the day, or sign a perfectly acceptable document and be out the door in no more than 5 minutes with a settlement not too far off their last settlement proposal.  They took the latter path.  One side sold their desired outcome by keeping things simple and balanced (all except the number!).