Mediation Negotiation Strategies: The Value of Options in Mediation

Why Mediation Negotiation Strategies Matter

Mediation as an alternative, or at least a complement, to litigation is well established. By condensing the negotiating process and holding it in the most favourable of circumstances, mediation has enhanced the prospect of timely and cost-effective dispute resolution.

Mediation has enhanced the prospect of timely and cost-effective dispute resolution. However, for those who regularly participate in mediations, there is a growing concern that whilst it has indeed shown itself to be a valuable tool for resolving disputes there is a danger of it being used merely to settle disputes slightly earlier and less expensively than would otherwise be the case. Insufficient use is made of techniques that add value to settlements. One technique in particular, that of searching for a number of options before deciding what to do, has been neglected.

Mediation Negotiation Strategies and the Principles of Getting to Yes

Separating Option Generation from Evaluation

This technique, which separates the processes of finding options and judging them, rather than searching for a single solution, was made famous by the emphasis placed on it by Roger Fisher and William Ury in Getting to Yes and has been advocated by many others since that book was first published. It not only seeks to broaden the options available to the parties but to avoid the instinctive adverse judgement often made to an opposition proposal. There can also be an improvement to the quality of the dialogue between the parties when both are working jointly on a number of proposals.

The most frequently heard argument against this proposition is that the Getting to Yes style of negotiating is of limited use in most common types of disputes where the parties have long since decided they no longer want to deal with each other. In such cases, it is said, a hard and disciplined style aimed at extracting as much as possible from positional negotiations gets the best results. Mental toughness rather than ingenuity is said to be the issue.

Why Sticking to One Option Creates Difficulties in Mediation

Critics question whether it is even feasible to find more than one option in most distributive negotiations where the parties are dividing loss upon the termination of an unsatisfactory commercial relationship. One party wants money out of the other and the issue is how much or how little. Furthermore, the process of inventing options and judging them in a brainstorming type of session has an unlawyerly feel to it, and brainstorming between opponents is difficult where there is little or no trust. Hard negotiating, tempered by the Getting to Yes principles of focusing on the problem and using objective criteria, may well be effective in such cases.

Hard Negotiators and the Perception of Success

It is widely perceived that hard negotiators beat soft ones, although soft negotiators are not nearly as common as those who fear being seen as soft. Yet the style of negotiation shapes the outcome. After almost any brainstorming session there is often astonishment at the variety of options generated, and many parties in commercial mediations come from backgrounds where generating and refining options is integral to decision making.

Cases turn on their own facts, yet experience shows that in many cases a search for options would benefit parties when terminating relationships and mitigating collective loss. Take a dispute involving goods sold and delivered, where one party disputes quality and the other demands payment. Parties often focus on allocating blame rather than preserving value. Neither wishes to retain the goods, little effort is made to dispose of them, and opportunities to mitigate loss are missed. Early mediation focused on options rather than fault could preserve value for both sides.

Timing and Strategy in Mediation Negotiation

Timing is an important strategic element. A delay in mediation is often seen as necessary for issues to clarify and for parties to face realities. Yet mounting costs and growing losses can themselves become barriers to settlement. Some argue that where loss can be mitigated, early mediation offers advantages even where there is no future relationship. This commonly arises in intellectual property disputes, where parties seek to end undisclosed relationships.

Multiple Options as a Negotiation Tool

Even after injunctive relief, parties may still have a number of alternative resolutions available. These may involve exchange of information, define past conduct, or set boundaries for future activity. There are often residual issues at the end of commercial relationships involving equipment, assets, information, or skilled employees, which fall outside the pleaded case but offer value saving options.

In one dispute, high value equipment and software were left unused while parties focused exclusively on perfecting arguments and assigning fault. Mitigating loss was perceived as an admission of liability, and so value continued to be lost while litigation progressed.

Generating Options to Improve Mediation Outcomes

In conclusion, the generation of options allows parties to improve settlements even when relationships have ended and negotiations are unavoidably positional. Because negotiation between antagonists is often a poor environment for spontaneous option creation, parties may need careful preparation and the assistance of a skilled third party to explore alternatives beyond the narrow track they are on.

How Ravenscroft and Schmierer Can Support Strategic Mediation?

At Ravenscroft and Schmierer, we advise clients on mediation strategy with a focus on value creation, risk management and practical resolution. We assist clients in preparing for mediation, identifying settlement options and approaching negotiations with clarity and commercial realism.

If you are involved in a dispute where mediation may offer more than a narrow settlement outcome, contact us now.

FAQ: Mediation Negotiation Strategies

What are mediation negotiation strategies?

They are techniques used to improve settlement outcomes by managing dialogue, timing and the exploration of multiple options.

Why is generating multiple options important in mediation?

Exploring several options can uncover value saving solutions that would be missed if parties focus on a single position.

What is the Getting to Yes approach in mediation?

It separates brainstorming options from judging them, encouraging collaboration before evaluation.

Is option generation useful in positional negotiations?

Yes. Even where parties are dividing a loss, options may reduce overall damage or preserve value.

Why do parties resist discussing options?

They may fear that mitigating loss could be seen as admitting liability or weakening their legal position.

Can early mediation improve outcomes?

Early mediation can help prevent losses from worsening and reduce costs before positions harden.

Do brainstorming sessions work in mediation?

They can, especially with mediator support, even where trust between parties is limited.

What role does the mediator play in generating options?

A mediator provides structure and encouragement for parties to explore alternatives constructively.

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Disclaimer: Whilst every effort has been made to ensure the accuracy of this article it is general in nature and does not constitute legal advice of any kind. You should seek your own personal legal advice before taking legal action. We accept no liability whatsoever for loss arising out of the use or misuse of this article.

For specific advice about your situation, please contact:

David Ravenscroft 

Senior Consultant

+852 2388 3899

dr@rs-lawyers.com.hk