By Eric Gillett
Law school was a transformative experience. Having just graduated college, I had very little exposure to adult life experiences. And my childhood was not unlike many others who had come of age in the late 1970s. Graduating law school in the mid-80s, I had very little exposure how business works beyond serving customers at hospitality and retail establishments off and on. Law School taught me how to think differently. It taught me how to identify the issue, evaluate facts that were relevant to that issue, and then apply those facts to the law.
But in the mid-1980s, law schools did not offer much in the way of education about alternative dispute resolution. The only relevant class I remember was one entitled, “Negotiation.” The assigned textbook, like so many others in law school, emphasized excerpted case law or statutes. But when it comes to negotiation skills, those two resources are not rich with information. And our young professor, as I recall, had a background in labor law, which she used to extrapolate her limited experiences around negotiations.
I remember being confused about my role in this class and much of the class was role playing. For one assignment, tasked with negotiating a contract for some widget or another, the only private instruction I remember was “you must secure the contract.” Well, for a twenty-four-year-old with no background in business, I had very little perspective about how to approach this exercise beyond that explicit instruction. And, as I remember it, when faced with onerous contract provisions demanded by the opposing student, and convinced she must have had a deep background in business before attending law school, I rolled over, agreed to everything, and secured the contract. I think I received a C+ on that assignment. Hence the confusion.
Luckily, time and experience offered an opportunity to learn more about the nuances of negotiation. Thousands of negotiations later, hundreds of mediations under my belt, I now know the keys to a successful mediation: nothing is certain, it all takes time, don’t judge, keep an open mind, and don’t leave right before the miracle happens. Easy. So, let’s talk about that.
1. Nothing Is Certain
We rarely know how a negotiation is going to turn out before we begin. And without a great deal of information from our opponent, we may not know until we are very far down the road with any negotiation. So how do we change that?
The best way to learn where a negotiation is headed is to listen. And this is not simply hearing the words communicated by your opponent, but really listening, in other words, active listening. You need to bring to the front of your mind your emotional intelligence, reading the room. During a recent mediation when I was spending time with the plaintiff and his attorneys, one of the attorneys said something that made it implicit that he and his client felt settlement was a high priority even though he explicitly said they were willing to take their case to trial if the defendant did not meet their demands. Recognizing that both of those statements can be true at the same time is essential to being an active listener. While it was not certain how the negotiation was going to turn out, I was better informed by understanding that settlement was a high priority. That information allowed me to probe where plaintiff was willing to resolve his case and recognize that his next best alternative was trial. We settled the case.
2. It All Takes Time
Years ago, when I was just starting to feel comfortable with settlement negotiations, I heard a judge explain the importance of patience in negotiations. It is easy to understand that most seasoned negotiators will rarely open with their best number or the final draft of a contract. Dollars are meant to move up or down and contract provisions are meant to be eliminated or added as the negotiation proceeds. It is all about the give and take. Some negotiators will plan their moves ahead of time. I rarely think that is a good plan. The reasons for that are made more clear below when we talk about keeping an open mind.
But for now, keep in mind, we are all creatures of process. Negotiations don’t make much sense if you won’t engage in the negotiation. If you don’t let one side ask for something that you are prepared to reject, and you simply agree to the offer, the other side will look for reasons to doubt your sincerity, question your motive, or simply believe they are giving up too much. But if you accept the back-and-forth process, if you move slowly toward a negotiated solution, each side is allowed to see and feel that what they get in the end is the result of both sides giving up something in exchange for something else. That exchange equals value and that makes negotiations valuable.
3. Don’t Judge
We give each other good reason to judge. We are judged by our words, by our eyes, by our twitches and our feints. We are judged by the company we keep, by the clients we represent. We are judged by many other things that are not even consciously identified. And there is nothing we can do to stop others from engaging in judgment.
But we have control over our own judgments. We have control over our emotions and anything else that causes us to react to another’s behavior. Judging would not be something to keep in check if we were always right. But we’re not. And when we’re not, we can’t really tell if we are only a little wrong or way, way off in our assessment of another.
By withholding judgment, we allow for more possibilities that a solution will be forthcoming. We don’t foreclose the possibility that our opponent wants to resolve a dispute as much as we do. We don’t foreclose the possibility that, with patience and in time, our opponent will get to a point in the negotiation that is acceptable to us and them.
4. Keep an Open Mind
As mentioned above, some negotiators plan their moves ahead of time. That only works well if you also can plan how your opponent will respond to each move you make. But you cannot. Negotiations, whether in mediation or two parties sitting in a conference room, are fluid. One offer, one concession, begets a counteroffer or another concession and we need to keep an open mind so that when the other side responds in an unexpected manner, we are fluid, like water, ready to go where the river takes us. If we are too rigid and have set down too many rules about where we are willing to go, not only do we run the risk that our opponent will see our preparedness, understand it, our opponent will then know what we are doing well before we want them to know.
In mediation, I am sometimes asked to convey a “bracket” offer. A bracket offer is a demand for one side to offer a certain amount and in exchange the offeree will agree to a different but also certain amount. Typically, this is an effort to signal an acceptable resolution number is precisely in the middle. It is easy to close one’s mind when presented with such an offer.
But we are well advised to restrain that impulse. We must first engage our active listening skills and figure out whether the middle is really the signal. I have found many times that when a party asks me to convey a bracket, they have not even thought about the middle. As a practice, I always make sure they understand that is what the other side will assume unless I also tell them that is not what this particular offer conveys. Until you know, keep an open mind.
5. Don’t Leave Right Before the Miracle Happens
Negotiations can be frustrating. You may regularly feel like they are a waste of time. Maybe you perceive that your opponent is not negotiating in good faith. Maybe you believe that your opponent fails to understand or appreciate the “negatives” of his or her case. You announce to your mediator that you are done making offers, you have reached your limit. That is your prerogative. But you may be missing out on the solution you want.
Time takes time. Patience is a virtue and your friend in negotiations. You never know when the other side will bend. And sometime, when you least expect it, an opportunity presents itself that you didn’t foresee. How could you? You couldn’t know that your opponent would suddenly find it advantageous to meet one or all of your terms. And because you chose to end the negotiation, you never will.
In a typical mediation format, the parties agree on the time they will spend negotiating. Often it is a full day or sometimes only half a day. Regardless, it is the sound of a clock ticking more loudly as you approach the end of the mediation that spurs one or both parties to get their best offers on the table and it is why we wait. It is why we allow the process to play itself out so both sides can witness the miracle of a negotiated agreement.
I have only had one mediation where I could not conceive why the parties should continue to work together through the end of the agreed mediation session. And I will admit that it haunts me that I did not come up with a reason to continue. I take it as a personal failing in my role as a mediator that I could not envision a path to a solution. And I hope that I learn from that experience. Because I believe that if we accept the uncertainty, embrace the fact that we have time and should be patient, avoid pre-judging either people or positions, and keep an open mind even in the face of events that call for us to shut down, then we will put ourselves in the best position to reach an agreement that works and allows everyone to move forward.
Eric Gillett is a founding member and managing partner at Preg O’Donnell & Gillett. Follow him on LinkedIn at https://www.linkedin.com/in/eric-gillett. He is licensed in Washington, Oregon, and Alaska. He has tried dozens of cases to verdict and mediated hundreds more. A navigator of resolutions, he is a commercial mediator and can be contacted through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. You can also reach him through his website at www.gillettmediation.com and his email at egillett@pregodonnell.com or eric@gillettmediation.com Mediations are available both in person and via Zoom.
