Often, during a mediation, I have asked a party if she wants to make the first offer. More times than not, especially if it is the defendant, the party tells me that she wants the other party to go  first on the rationale that it is a sign of weakness or some similar explanation for her to make the opening offer.

       In response, I often explain that just the opposite is true: she who makes the first offer often has the advantage: she sets the parameters of the negotiations as well as affecting the other party’s expectations. In sum, she has the “upper hand” or the leverage in the negotiation.

       This notion of “anchoring” was the topic of Linda Bulmash’s latest Negotiation Tips (Los Angeles County Bar Association Vol III, No. 4 – January 2010) entitled “Making the First Offer Can Be the Smart Move.”(LACBA “Negoiation Tips” (January 2010) )Ms. Bulmash notes that the best negotiators think in terms of affecting the other party’s expectations in deciding whether to make the first offer:

      “First offers act as an anchor point, drawing the other side into your suggested range. Studies have shown that 85 percent of the time, first offers correlate with the final outcomes. Even if the first offer is not within a reasonable range, it still affects the negotiation’s outcome.”

       ”For those of us who think we are hip to the game, savvy and sophisticated, the impact of first offers shows that we are still suggestible. As proof of that theory, participants in a college study were asked to state their Social Security number before estimating the number of physicians in Manhattan. They all picked numbers that correlated with and were close to their Social Security number.”

      ”Before deciding whether to make the first offer, ask yourself:
          

       1. What do I want to achieve by making this offer?
      

       2. Do I have enough information to make this offer?
      

       3. How do I want to affect the other side’s expectations?
     

       4. How will this offer affect the other side’s expectations?
     

       5. What kind of offers and counteroffers do I need to make to move strategically closer to my bottom line?
     

       6. Should my offer be firm or flexible?

       7. How can I propose the offers”

      So, in your next negotiation, instead of automatically rejecting the notion of making the first offer, take a moment and look at the long range effect of your going first: how will it affect the expectations of the other side. Will your first offer, effectively, act as an anchor so that you resolve the matter within your  range of expectations?

      . . .Just something to think about.

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       In the latest edition of the Los Angeles County Bar Association’s Negotiation Tips ( Negotiation Tips ), Linda Bulmash addresses an often reoccurring issue in mediations: how to keep a negotiation from collapsing when an impasse occurs.

       Her most import tip is to control your emotions and maintain your cool. That is, think with your head, not your heart. Her other tips include:

      1. Interrupt the process. Call for a time out that gives everyone time for tempers to cool.

      2. Explore the perspective of those seated at the other side of the table. Continually question yourself and put yourself in the position of the others to try to determine why they are behaving this way. Then you can focus on their underlying needs rather than reacting to their behavior.

      3. Paraphrase what you have heard. “What I heard you say…. Am I correct?”

      4. Inquire by asking open–ended questions that require the other side to elaborate.

     5. Name the issue and call it as you see it: “Criticizing me or attacking my client does not seem the best way to build an agreement to resolve our differences.”

      6. Ask a question directly about the behavior. For example, when someone presents a take it or leave it “offer,” respond by saying, “What do you hope to accomplish when you threaten to walk away while we still have so many issues to discuss?”

      7. Correct an impression. If others accuse you of not listening or being uninterested in their opinion, respond by saying, “I did not mean to seem uninterested. I am very interested and would like to hear more.”

      8. Divert and refocus. When tempers flare, you can respond by saying, “I think we are getting distracted. Let’s try to get back on track.”

     9. Advocate and present your own interests and needs to the opponents but frame it in terms of answering their WIIFM (What’s in It for Me). 

      The first tip is a familiar one: “Interrupt the Process” – take a recess from the negotiation and go for a walk or engage in some other activity. As I have noted in earlier blogs – sometimes – the “ah hah” moment comes precisely because and when we are not thinking about an issue but are focused on something else “Sleeping on it” often does wonders for issue resolving!

      The second tip is just as vital: look at the issue from the other’s viewpoint. Doing so will help you understand what is important to the other party and why. This then allows you to rethink your position and perhaps alter it so that common ground can be found.

      This tip leads to the next; repeat back to the person what she just said. By doing so, that person can verify that she did,  indeed, say what she thought and intended to say and you can verify that you heard it correctly.
 

        Further, by asking open-ended questions (tip 4), you gain a lot of information which is always useful on in reaching a compromise.
 

      Tip no. 8 is another crucial tip in overcoming impasse: divert and refocus. Point out that the parties are getting side tracked by their emotions and suggest strongly that everyone stays focused on the issues.

       From my own experience as a mediator, I have found that these tips do work!

       So, the next time your negotiations get bogged down, think about and invoke these tips. They will help get you out of the quagmire and on to firm ground.

       . . .Just something to think about!

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       On Saturday, November 7, 2009, Dr. Daniel Druckman, Professor of Public and International Affairs at George Mason University in Fairfax, Virginia delivered the 5th Annual L. Randolph Lowry Lecture at Southern California Mediation Association’s 21st Annual Conference.
 

      His lecture was taken from his article Intuition or Counter-Intuition? The Science behind the Art of Negotiation published in the October 2009 issue of the Negotiation Journal (at pp. 431-448). In the limited amount of available time, Dr. Druckman  highlighted the metaphors for negotiation and some counter-intuitive findings regarding negotiation.
 

      First, negotiation can take many forms and is used in varied contexts, be it from our own daily lives, domestically, regionally, internationally, or even globally.
 

      To best describe the different forms of negotiation, Dr. Druckman uses metaphors. For example, some negotiators see negotiation  as a game, while others view it as a discourse.  Still, others,  see negotiation as a tool for managing organizations. (p. 433.)
 

      Some view negotiation as a puzzle to be solved with the familiar example being the ‘prisoner’s dilemma”. Others view negotiation as a bargaining contest such as occurs in haggling in the market place (p. 433).
 In addition, negotiation can be viewed as diplomacy politics in which “negotiation is viewed as a microcosm of the larger game of international politics” (p. 434).
 

      In short, there is not just one facet to negotiation: it has many faces, and how it is used depends heavily on the context in which it is used: the market place, within organizations, between states, between countries, or globally.
 

      Of equal interest are Dr. Druckman’s counter-intuitive findings. Each challenges “. . . the  popular wisdom and illuminate[s] the complexity of negotiating behavior”.(p. 437).

      The first involves the notion, to negotiate or not to negotiate: “A continuous negotiation process can increase the chances of getting a settlement.  It can also serve to perpetuate impasse” (p.437). Thus, it is important to know when to negotiate and when to stop. According to research, negotiations should continue as long as” momentum is building towards an agreement” but should stop” if new incompatibilities are discovered” which will serve only to heighten the conflict. (p. 437.)

       At the same time, “impasse can turn a frozen negotiation around.” It is often a “wake-up call” to negotiators to perhaps take a “time out” to reframe issues or develop new procedures that can lead to progress. (p. 437)

       A second counter-intuitive finding is that some times, “developing negotiating alternatives can have negative effects that outweigh the “good” agreement” (p. 438). That is, generating too many alternatives may produce a less than ideal agreement. Thus, determining the best alternatives to a negotiated agreement  or BATNA may actually be detrimental.

       A third counter-intuitive finding is that “exchanging too much information during negotiation can have the unforeseen consequences of revealing new incompatibilities that can escalate” rather than resolve, the dispute (p. 438).

       Similarly,  “too much flexibility in concession making may have negative implications for group loyalty” (p. 438).  According to Dr. Druckman, research has revealed that “quick concessions, even if mutual, often lead to suboptimal agreements.” Dr. Druckman calls this the “Winner’s Curse” (p. 438).

       The final counter-intuitive finding discussed involves emotional expressions:

      “. . . displays  of anger can be helpful when they reveal strongly felt values or interests and are directed at the task rather than at the other person(s). Strong expressions can serve to define or anchor a bargaining range if they are regarded as authentic signals rather than as distracting “noise” (p. 438).

       Similarly, firm stances can be effective, as well:” Standing firm on principles early in a negotiation but showing flexibility on positions later can elicit more concessions. . . ” (p. 438). (Or, similarly,  as my mediation trainers have often said: “be firm in the position but soft on the people.”)
 

       Dr. Druckman’s  brief discussion of the different metaphors for negotiation and the findings on counter-intuitive negotiation tactics gave me a lot to think about and to incorporate into my mediation practice.

       I hope that they provide food for thought for you as well!

       . . . Just something to think about!

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       In my various mediation training classes, we have discussed the pros and cons of an apology; whether it should be given and if so, under what circumstances.

       From my own life experience, I know that apologies are important but I did not realize what a real difference they can make or how powerful they can be until today.
 

      Today, I mediated an emotionally difficult case. The plaintiff, of baby boomer age, rented an apartment in a secure building. The owner of the building employed a resident manager and handyman on the premises. According to plaintiff, although the handyman was often drunk at work, the manager did nothing about it and, in fact, often shared cocktails with him on her patio.
 

      One evening while plaintiff was walking to the apartment of one of her friends in the building, the handyman accosted her and began groping. Only with the assistance of one of her neighbors was plaintiff able to escape out of the corner into which the handyman had pinned her.

       This event traumatized plaintiff for which she sought counseling. While the counseling helped a great deal, it was obvious during the mediation that the emotional scars still existed.

       Prior to the mediation, I was inclined not  to hold a joint session. However, just prior to the start of mediation, I discussed this issue with defense counsel and the defendant’s representative. They stated that for purposes of the mediation, they were not contesting the events or otherwise taking issue in any way with what had occurred. I suggested a joint session so that they could make this acknowledgment directly to plaintiff.
 

      So with plaintiff and her counsel’s permission, we held a short joint session. We did not discuss the event itself but simply the parties’ perspectives on the matter.
 

      After plaintiff’s counsel finished, defense counsel spoke for a few moments noting that the issues were not being contested for purposes of the mediation. Then the representative of the landlord spoke. The first words he said were directed to plaintiff: “I apologize for what happened to you.” He continued, and the reactions of both plaintiff and her counsel were visible: their hardened demeanors softened considerably. Someone had not only acknowledged that the event had happened but had apologized for it.
 

      With this acknowledgement, the sole issue remaining was the amount of damages. After several rounds of negotiation, the parties agreed on a sum, and drafted and signed a settlement agreement. It was over. It did not take very long at all to resolve this matter.
 

      Afterward, plaintiff’s counsel told me that when she and her client walked in to the mediation, they had planned to take a hard line, ask for a large sum of money and not negotiate much below their initial demand. But, then, the landlord’s representative apologized. That apology changed everything. Up until the mediation, no one from the landlord, not even the resident manager (who was well aware of the event at the time it occurred) had acknowledged to her that the event had even occurred much less asked her if she was okay. Rather, the resident manager ignored the whole thing as if it had never occurred. The apology was the first  acknowledgment  that something bad, indeed, had happened to plaintiff which should never have happened. It thus became the most important part of the mediation. Because of that apology, plaintiff was willing to settle and in fact, settled for a much smaller sum of money than she had in mind when she walked into the mediation.
 

      An apology: it can be quite powerful!  

      Perhaps this is why, within recent years, thirty five (35) states and the District of Columbia have enacted statutes excluding expressions of sympathy after accidents as proof of liability while five (5) states have passed statutes requiring mandatory notification of adverse events to patients. These statutes were enacted mainly with medical malpractice in mind:  to assist the medical  community in its efforts to deter or reduce litigation and the amounts paid in settlement by being able to express sympathy without such expressions being considered admissions of liability. These statutes allow the medical professional to be human without exacting a large price for showing that humanity.

       As Patricia  A. Bronte explains in her article entitled ‘Reviving The Lost Art of Apology” published by the Section of Litigation of the American Bar Association:
        

        “Although the apology statutes were enacted within a relatively short    period, there are significant differences among them. All of them provide evidentiary protection for simple apologies (“I’m sorry you were hurt”); unfortunately, one study has shown this type of apology to be the least effective, and possibly counterproductive, in reducing litigation and settlement amounts. Five states have apology statutes that also protect partial apologies (“I made a mistake and I’m sorry”), but only Arizona’s statute explicitly protects full apologies (“I’m sorry, it was my fault you were hurt”). Statutes in 13 states clearly protect simple apologies and may also cover broader apologies.  “
 

      One example is the California statute.  California Evidence Code Section 1160 (california-evidence-code-section-1160) provides, in part,  that “…portion of statements, writings, or benevolent gestures expressing sympathy  or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident ….shall be inadmissible… A statement of fault , however…. shall not  be inadmissible….” 
 

      So, apologies are powerful and can go a long way to avoiding  litigation altogether or greatly reducing  the settlements often exacted to conclude it.  

       The next time are in a dispute, rather than letting it get out of hand,  think about simply saying” I apologize.”
 
       . . .Just  something to think about.

      If you have not done so already, do not forget to sign up for the Southern California Mediation Association’s 2009 SCMA Conference I am in charge of it and hope to see y’all there! 

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       As I have mentioned several times over the last few weeks, the Southern California Mediation Association (“SCMA”) will be hosting its Annual Conference on Saturday, November 7, 2009 at Pepperdine University School of Law, Malibu, California. (See, 2009 SCMA Conference) It will be preceded by a dinner on Friday night, November 6, 2009 at which Lee Jay Berman will host a discussion entitled “M3: How Do Mediators Spread The Word And Better Educate Users.” 

       The Conference is entitled: “M3 The Next Generation” and will explore all of the various ways in which mediation is being used, can be used and will be used. One of the panels will explore this from the female perspective. The panel, comprised of Jan Frankel Schau, Esq., Joan Kessler, Esq., Amy Fish Solomon, Esq., and Stacy Phillips, Esq. will examine the now historic literature on gender and communication and question its applicability in negotiation and mediation in 2009. The panel discussion, entitled “Negotiating in the Female Voice: What Can We Learn From Our Women Colleagues (Not For Women ONLY)” will explore the gender biases, assumptions, empathy and competition in mediation and negotiation.

       I highlight this panel because recently one of its panelists, Jan Frankel Schau, made a very interesting point in her Schau’s Settlement Strategies. In it, she discusses the importance of having the important decision makers at the mediation and fully present in all respects. (See, top-twelve-tips-for-success-in-negotiations) Why? She explains:

      “Statistics suggest that 55% of communication is non-verbal. It stands to reason, then, that if the decision maker is not present. . . , they miss out on more than ½ of the communication going on. . . .” (Id.)

       Thus, when the client is not physically present at the mediation session, she does not become “invested” in the process; rather she is distracted by emails and what is going on where she is physically. Further, and more importantly, she is unable to respond to the bulk of the  communication during mediation, since it is non-verbal. Thus, she will probably miss much of the true value of mediation, and as importantly, her matter will probably result in a disappointing outcome.

       Ms. Schau further points out that while attorneys may dislike joint sessions, the clients, (i.e.  the actual parties to the dispute) appreciate them. Why?  . . .“The clients bring the conflict in and they are a critical component to its resolution.” (Id.)

       Ms. Schau makes some important points. To learn more of what she has to say, come to the Conference and attend her panel discussion.

       . . .Just something to think about.

If you have not done so already, do not forget to sign up for the Southern California Mediation Association’s 2009 SCMA Conference I am in charge of it and hope to see y’all there! 

     If you enjoy this blog, and want to receive it weekly via RSS Feed, click here: http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button