You have to learn the rules of the game. And then you have to play better than anyone else. Albert Einstein
Welcome back. If you have taken the first three steps you are now ready to enter into the negotiations arena. You have done your homework and are therefore well prepared. If the other side of the negotiations has not completed the first three steps then I can guarantee that you will be in a better, more confident position when you begin the formal negotiations. You will know not only what you hope to realize from the negotiations but also your underlying reasons for participating. You will know when it is best to walk away from the negotiations and how far the other side can go before they feel they must walk away. You will have determined a fair and reasonable value for any material items that are on the table and assessed the strengths and weaknesses of your case if this is a litigation matter. You have a strategy and understand the possible outcomes of the negotiations.
Now, the final step before anybody makes the first offer is to be sure that everyone is on the same page about the process. This may be a very easy step in the case of informal negotiations but it may take on huge significance in the case of more complicated matters. As negotiations become more complex, with a greater number of issues on the agenda and more parties seated at the table, the necessity for clearly defined rules becomes more important. Without clearly defined rules the negotiations can devolve into chaos or, worse, fail to take place altogether. You can easily imagine how hard it would be to participate in a six party negotiation with each party represented by zealous advocates but no agreement as to the rules defining the process. However in simple daily negotiations the rules may be set by regular custom and practice. If you are discussing where the family should go for dinner the ground rules may be simple: that everyone has a chance to make a suggestion, no one raises their voice, the options will be discussed and the majority wins.
In the case of more significant negotiations that occur in our daily lives, such as the purchase of a home, the rules become more formal and inflexible. The homeowner lists the property for sale at a given price, the buyer makes an offer to purchase the home perhaps with some specific terms regarding allowances or closing times, the homeowner makes a counter offer and the negotiations continue in this back and forth manner until a deal is made. The final agreement is then formalized into a purchase contract for the property and a closing for the sale is scheduled. While the terms of the sale may be more complicated and the process involve more people including the seller, her agent, the buyer and his agent, the overall rules of the process are fairly straight forward.
One form of negotiations that is becoming more popular in divorces and other legal matters is the use of collaborative representation. This is a process whereby the parties to a litigation agree to each hire a specially trained collaborative attorney and then all other professionals (accountants, appraisers, therapists) will be hired jointly as part of the team. In collaborative cases the initial meeting of the parties and the collaborative professionals will most likely be a time to establish the rules of the negotiations. In such cases the rules are commonly referred to as the collaborative agreement. This agreement will determine who will be included on the professional team, how the professionals will be paid, who will be the facilitator of the meetings, how often meetings will be held, the rules of confidentiality, what happens if the process breaks down and many other finer details of the collaborative law process. In my experience having a carefully written and considered collaborative agreement provides everyone with a clear understanding of the procedure and is critical to the success of the negotiations that are to follow.
If you are involved in a complicated law suit with a formal mediation process then there are several issues that must be decided before the mediation begins. You may have to decide who will be the mediator, where the mediation will take place, who will pay the mediator, what will be on the agenda of the mediation, will the mediation be subject to the local rules in your jurisdiction and if not what rules of confidentiality and neutrality will apply, can anyone other than the parties attend the mediation, and what happens if the person with ultimate authority to make a final deal is not present at the mediation. Usually these rules of mediation are established by local procedure or by the parties when the mediator is selected. If the parties are unrepresented the mediator may use the first meeting to reach an agreement by the parties as to the rules that will apply to the process. In some particularly litigious cases it is a good idea to have the professionals meet with the mediator prior to the initial session to make sure that everyone has accepted the terms of the mediation and are prepared to proceed with the negotiations at the initial session.
In particularly complicated matters such as international, diplomatic negotiations the rules of the process can become a negotiation unto themselves. In the case of the negotiations for the termination of the Vietnam War the parties spent months arguing over the size and shape of the table to be used. While this may be an extreme example of negotiations over process, there are many other times when the rules for the negotiations have taken on a life of their own. As a mediator I have had more than a few mediations cancelled or delayed because, at the last minute, someone tried to change the rules and the other side objected. I have had cases where, just before the mediation was to begin, one side has said they would only attend if the other side agreed to pay for the mediation or one party wanted to bring a relative when the other side had not previously agreed. Such last minute surprises are never helpful as they set a tone of mistrust and increase hostility before the process has even started. It is better, if possible, to discuss and agree to the “rules” prior to the onset of the negotiations.
If you have questions about the general process of mediation, please refer to my web site (www.odayresolutions.com) for examples of some of the standard rules used in Court Ordered mediations in my area. These may be different in your area but they will at least provide you with some areas to discuss with the mediator or your counsel before the mediation is set to begin.