The mediator’s first job is to assess whether the proposed negotiation is suitable for all, is feasible, and can proceed in accordance with the guiding principle of “do no harm”.
In this 4-part blog series, we will explore some questions mediators can review with clients before starting a mediation:
PART 1 – INITIAL ASSESSMENT
Do you really want to negotiate?
It is critical to first assess whether negotiation is in fact in each client’s best interests. Parties often feel pressured to negotiate; judges, lawyers, family, friends, the other side—everyone is always telling parties to try to settle their dispute. But it is not always in each person’s best interests to try to settle, or even to negotiate. Because all forms of negotiation must be voluntary, and because each dispute resolution process must “do no harm”, the starting question is: “Why do you want to negotiate? What is your alternative to negotiation? Is that alternative better or worse for you? If you are not sure, you should go away and think about it and be ready to answer those questions.”
Are you able to negotiate?
Even if a party wants to negotiate and believes that negotiation is better for them than no negotiation, there may be impediments. Is there a restraining order? Does the person have the capacity to negotiate? Do the parties speak the same languages, come from similar cultures, understand the meaning of negotiation? Is one party using the process in bad faith, or do they have a history of using negotiation for other purposes? Is the power dynamic such that negotiation can be designed to “do no harm”?
What do you need to be able to negotiate (well) ?:
- Has each party fully assessed all aspects of their “B.A.T.N.A.”? (best alternative to a negotiated agreement). Does each client understand what this means? Have they each accurately assessed the legal merits of their respective positions? If not, ensure they understand how important this is, and that they obtain that advice. Have they each realistically assessed the range of possible solutions and how these might impact them, so that they can negotiate on an informed basis? If not, determine what supports they need to complete that assessment. Does either need financial or other advice? Does either need emotional or other supports? How can the negotiation power balance be made to feel acceptable for each client?
- Does each party have all the information and documentation that they need, to support their own case and to understand the other’s case? If not, ensure that the process is designed to meet those needs, or ensure that it is in place before starting the process.
