There are a few basic concepts and/or pitfalls that lawyers and their clients need to be aware of when participating in a negotiation and mediation:
- Ego Creep – It’s extremely important in a negotiation not be overly confident in your case or your ability as a negotiator. Becoming overly smug, aggressive or belligerent will not help your case and will not help you reach a settlement.
- Bias – A good negotiator will recognize their own biases and separate them from the situation at hand. People tend to interpret information in a way that confirms their own beliefs. Your beliefs need to be tested and confirmed by precedents and legal arguments, not simply by your own beliefs.
- Impatience – Negotiation can take an extremely long time and the process can be painfully slow. Expressing frustration with the pace of the process usually is not helpful and can be interpreted as being desperate.
- Naive Realism – This is the belief or conviction that the way you view the facts is “the way it is.” Negotiators need to accept that there is no such thing as a single reality especially in complex cases. People interpret situations differently and have different perspectives regarding what is factual.
- Assumptions – Assumptions need to be questioned and tested whether they come from your side or the other side. Don’t confuse assumptions with truths.
Deborah A. Todd