Advocacy in Mediation - Vol. 5 No. 1-4 ARIA 1994
Tom Arnold - Chairman, ADR Committee Licensing Executives Society International (LES); Arnold, White & Durkee Houston, Texas
Originally from American Review of International Arbitration - ARIA
I. TIME TO BE PREPARED
Depending on the circumstances, you reasonably expect an 80-95% chance of settling your case when you go to mediation. There are no appeals from a settlement you agree to. It, therefore, behooves the lawyer to prepare well, both himself1 and his client.
But, strangely it seems, that most lawyers come to mediations to "wing it":
— with no skills in and no knowledge of the technology of negotiation;
— with no game plan;
— with no careful study of their client's Best Alternative To Negotiated Agreement or BATNA, or WATNA;2 the Worst Alternative To Negotiated Agreement;
— with no study of the opposite number's BATNA or WATNA;
— with little, if any, sensitivity to the signals that are sent with every offer and counter-offer;
— with no awareness that the one sure way to guarantee that you will not settle at your target number is to make a big jump to it, early on in the process;
— with no preparation of the party to acquit himself well so as to impress the insurance adjuster, who never saw him before, that he will make a credible and appealing witness;
— with no use of the powerful tools, apology, shows of respect and sympathy for the plight of the other party;
If ever there was a time to be thoughtfully prepared, it includes the approach to a mediation as fully as the approach to the courtroom.
Because the deal you make in the mediation is the final deal.
That preparation includes assuring that: