The process of mediation.
There is NO such thing as a short mediation. Mediations work because of the time it takes to conduct the negotiations. The longer the process takes, the more likely you are to settle.
It is a bit like percolating coffee, it takes time to do it right. You cannot rush the process, so don’t try. The magic is in the waiting, so rushing would be counter to your ultimate goal.
Why does the process work? People wear down as mediation drags on. What seemed like an impossible settlement at the beginning of the day suddenly can become achievable after 8 hours of sitting in a room and negotiating with the mediator.
Create your negotiation plan.
To mediate successfully, you need a negotiating game plan. First, we like to set a high anchor point—that’s the initial offer. You need it to be high enough to leave plenty of room to negotiate, but not be so high that it is laughable. This can be a fine balance, but the point here is to throw out the first offer and make it high. Once you set that anchor point, you are in the driver’s seat at the beginning of the process.
A thousand points of light…
Next, consider using a multipoint offer. The more items you can include the better because it allows the opposing side to pick and choose which terms they like and which they do not. By having a menu of terms (let’s say ten different terms you want) you might find that you are in agreement on a majority of the terms and that leaves the negotiation down to just a couple of terms.
Never let them see you sweat.
Lastly, don’t give up until you settle or the other side walks out. Many people get frustrated or insulted by the offers being made in mediation. You should never be insulted, offers are just offers nothing more. And if you force the other side to walk out before settling then you will know where their breaking point is. If you are the first one to end a mediation, then you have no idea how far the other side might have gone before calling it quits—but they know your breaking point. Don’t give up that advantage. It is fine if you want to stick to your guns and not drop your offer, but don’t let the other side know your breaking point.
Confession is good for the soul.
One final thought: know beforehand whether your case MUST settle or not. This is not something you want to share with the mediator or the other side, but you need to know the answer to this question. Are you really prepared to go through the costs and emotional strain of your case continuing? Do you really have enough evidence to take a good shot at winning at trial? It is time to be brutally honest with yourself. If you can say yes, I can continue, then you are in a strong negotiating position and you can hold out much longer. If you say no, my case must settle, then you can hold out as long as you can, but in the end you need to take the best deal offered.
It has been said that a bad settlement is better than a great trial. That’s because with a settlement you are in control of your resolution, whereas trial is a real unknown. Mediation gives you the chance to be in control, but you need to understand the trust mediation process so you can use it to your advantage.