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 2 – IDENTIFY THE TERMS OF THE NEGOTIATION PROCESS
Define the process:
What are the elements of the process that each party needs? Is it confidential? What are the timelines? What are the issues? What are the disclosure and other terms? How is it being paid for? Who needs to be there? On what basis? What is the intended outcome…minutes of settlement? A consent order? A Memorandum of Understanding? Ensure clients understand the differences among these possible outcomes and that they agree on what they are doing. Make sure that there are no surprises; that everyone is required, up front, to consider all of the elements of a successful negotiation that does no harm.
Define the starting point:
Is there an existing order, agreement, or arbitration award that one of the parties is seeking to change? This is a critical piece of information that is often overlooked. Parties need to know the basis on which the negotiation is proceeding. If there is an existing order or agreement and one of them seeks to change it, they both need to understand the legal “onus of proof” and other implications before starting the dialogue. Otherwise, if the process goes ahead as though there is no such existing starting point, harm could be done. If you are not sure, and/or the parties are not sure, about the implications of an existing starting point, do not begin the negotiation without this understanding.
Clarify the status of all pre-negotiation-negotiation:
most people pre-negotiate and/or try to do so. Ensure that all pre-negotiation is on the table; that everyone knows what has been fully and freely agreed to prior to the commencement of the negotiation. Often one party thinks the other has agreed to certain points already, and the other feels they were pressured, guilted into it, or else they did not see their silence as meaning agreement. Also, sometimes parties will make pre-negotiation conditions just before starting; lay out the ground rules about such things so that the commencement of the negotiation is transparent.