The last mediation I conducted in 2021 did not result in a resolution. There were a number of reasons why which I could not quite put my finger on. But over the holidays I read some books on negotiation which helped to crystallize my thinking. One of the books, Bargaining for Advantage: Negotiation Strategies for Reasonable People by G. Richard Shell (Penguin Books, New York, 3rd ed.)  made the point quite simply: It is all about trust, rapport and reciprocity. “If reciprocity does not take hold, the parties will have a very difficult time making a successful deal.” (Id. at 118.) The parties must share information.

To feel comfortable doing this, the parties must establish trust and rapport. “Modern neuroscience research has underscored the vital importance of establishing a positive mood for more open communication. “(Id.)  And to establish that positive mood, one must establish rapport which means engaging in “small talk” and getting to know the other person. That is, “… to find some interest, passion, or background experience unrelated to negotiation- that you share with the other negotiator.” (Id. at 118.)

Why? This is due to the principle of “liking.”   Quoting Robert Cialdini, the author notes, “” We most prefer to say yes to the request of someone we know and like.”” (Id.)  The author notes that the underpinning of this “liking” is trust. “We trust others a little more when we see them as similar to us.” (Id.)  Studies have shown “…that people connect better when they share similar appearances, attitudes, beliefs, and affiliations. “(Id. at 120.)

In the mediation at issue, plaintiff’s counsel was very tight lipped, refusing to share any information and to explain why she was demanding the amount she was wanted. She simply wanted it without explanation. By her refusal to share information, she made it impossible to build up any trust and rapport with the defense and thus to employ the “liking” principle to her client’s advantage. Further, with the refusal to share information, plaintiff’s counsel made it impossible for the defense to determine what interests, needs, or concerns were behind the numbers and how those could be addressed. By sticking to pure “positional” bargaining without sharing any information, Plaintiff’s counsel made it almost impossible to settle the case. As I explained to plaintiff’s counsel, one cannot simply demand an amount of money without any explanation and expect the other to agree without question.

It is all a matter of building trust, rapport and reciprocity. Without these, even the easiest dispute will not settle.

I want to wish each of you a very Happy, Healthy (Covid Free!) and Prosperous New Year. May this be the year that the pandemic ends!

…. Just something to think about!




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