Law Tips: Mediating Styles & Strategies

Negotiation techniques are a blend of what our natural personality traits are and the choices we make. Distinguishing the difference between styles and strategies is important. Our Law Tips contributor, Sam Ardery, Bunger & Robertson, Bloomington, Indiana, has tried and true advice concerning these differences.

Negotiation Techniques
In the broadest sense the two main styles of negotiating are either adversarial or friendly. However, one can be very friendly and still adopt competitive strategies, and one can be adversarial and negotiate in a way that is curiously non-competitive. The style goes more to the personal leanings of the particular negotiator, and sometimes the style any of us believe ourselves to be is very different from how our negotiating partner may perceive us. You might do well to ask someone who is close to you what they think

Strategy
The strategy of a negotiation has much more to do with the planned approach to the negotiation and can vary with the parties, the type of issues being negotiated, the relationship of the parties and whether there will be future dealings.

The three main strategies are competitive, cooperative and problem solving.
Competitive
negotiators tend to make initial offers or responses on the extreme end of what is within (or even outside of) what might be thought of as reasonable, and these negotiators tend to be a bit more intractable and make smaller concessions.

Cooperative negotiators tend to be more relational and are looking to find a mutually acceptable path to end a conflict, piece of litigation or other dispute. These negotiators share information pretty freely and continue to do so until a more competitive negotiator takes advantage of the agreeable transparency of the process.

Problem solving negotiators often look to enlarge the pie of possibilities to see if there may be some larger gains for all sides if creative thinking is employed. These negotiators may look to do brainstorming and will listen carefully to the other side to see what things might be valued by their counterpart and may cost them little to concede.

Competing Styles
All of us are most comfortable with our own styles and strategies. It is easy to get frustrated or angry if our negotiating partner chooses a style different from our own and uses it in a way that we find trying or unproductive.

Adversarial/competitive negotiators generally care very little what style or strategy the other side uses, and they are more than willing to take advantage of the cooperative or problem solving negotiator. If one side is competitive and the other side pursues a cooperative or problem solving strategy, it will be difficult for the cooperative or problem solving negotiator to secure a result as good as the competitor, unless the cooperative negotiator alters strategy to convince the competitor that the strategy will not be effective and might scuttle the entire negotiation.

There are potential dangers for both sides. The competitive negotiator may run-over the cooperative or problem solving negotiator and in a “one-off” get a better than average result when compared to other pairs of negotiators. The cooperative negotiator may so frustrate the competitive negotiator that he or she just quits before either side learns whether or not a deal can be struck.

For competitive negotiators to do well in serial negotiations with different styles or strategies, patience and listening instead of impatience and convincing can be more effective. The cooperative negotiator may become so frustrated or uncomfortable with the adversarial or competitive negotiator that he or she may give in too soon and lose a chance at a better result.

For the cooperative negotiator dealing with the competitive negotiator, patience is also important and withholding the willingness to share information and offers will tend to get more respect and better results from the negotiation.

To negotiate better and enjoy it, consider the following:

  1. Decide what you or your clients want – not as easy as you think.
  2. Decide what price you are willing to pay – direct and indirect costs.
  3. Determine what leverage you have (positive or negative) to make it easy for the other side to do what you want.
  4. Understand your counterpart’s interests as comprehensively as you can.
  5. Use their language to help them decide that what you want is the best decision for them.
  6. Do not try to convince them.
  7. Acknowledge the differences and don’t evaluate their merits – they get to have their own principles, ideas and evaluations.
  8. Prepare, prepare, prepare.
  9. Remember that being right is really expensive and way overrated.
  10. Take the parties’ interests seriously, but do not take yourself too seriously.
  11. Persevere

As you keep those overarching theories in mind, make conscious choices (rather than default choices) about the style and strategies you are going to choose to use.

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We are grateful to Sam Ardery for generously sharing his expertise. In next week’s Law Tips article he discusses Effectively Using A Mediator. For the full impact of his training, you may register for the video replay seminar entitled: Representing A Client In The Mediation of A Personal Injury Case. As well, this Friday, Nov. 13, ICLEF welcomes National Speaker, Marty Latz for Gain The Edge: Negotiating to Get What You Want!

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About our Law Tips faculty participant:
Samuel Ardery, Partner, Bunger & Robertson, Bloomington, Indiana. Sam is a litigator, mediator, arbitrator, facilitator and teacher, who has been involved in more than 4,000 cases around the country over a 27 year career. His primary practice areas are civil litigation, commercial litigation, mediation, arbitration, mediation and negotiation training. He has been named to Best Lawyers In America, one of the Top 50 Lawyers In Indiana and an Indiana Super Lawyer in consecutive years. He has also received the Outstanding Adjunct Teaching Award at the Indiana University Maurer School of Law, where he is an adjunct faculty member.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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