Mediated Negotiation

Mediated Negotiation is designed to maximize the parties' control over the resolution of their dispute and to improve the quality of the decisions they make on whether or not to settle. I offer a participatory process which is based on the presence of full settlement control at the negotiating table. The process has evolved over many years of experimentation and thousands of cases. In essence, it is an expanded, more productive way of negotiating. My mediator style is primarily facilitative, but I do offer evaluative techniques if the parties request them. The process described below can be modified, but only by prior agreement among the parties and the mediator.

Process Description

Before the mediation, each party sends to me and to all other parties a "Case Overview " summarizing its view of the case (two page maximum). The confidentiality of the process is protected by an Agreement that all parties sign at the beginning of the session, as well as by M.G.L. c.233, sec. 23C.

Stage 1: Case overviews

Mediated Negotiation begins with a Joint Meeting during which all participants are in the room. Each party has 15 minutes to summarize how it views the case, followed by some time for group discussion. Documents supporting each party's view of the case as well as all depositions should be available. Any video presentations are limited to five minutes. You should not bring experts or other witnesses to the negotiation (this policy may be modified only by prior agreement among all the parties).

Stage 2: Information Development & Proposal Exchanges

The negotiation usually continues with a series of Separate Meetings during which I meet privately with each party or a group of parties to develop and exchange information, discuss strengths and weaknesses in the case, explore mutual gain possibilities, etc. Each Separate Meeting normally concludes with your developing a new settlement proposal for presentation to other participants. More than almost anything else, a credible deadline helps to settle cases. The mediation is over at the end of the allotted time, so you should be exchanging serious settlement proposals before then. If an agreement is reached, it is put into brief written form and signed.

Stage 3 (Optional): Mediator Proposal If Jointly Requested

A majority of cases settle using the procedures outlined above. However, if the parties reach an impasse after a serious effort to negotiate their own resolution, I may offer them the option of a final settlement proposal from me. I only make a proposal if the parties jointly request it. If requested, I develop a proposal that seems fair to me (I do not "split the difference"). You have time to consider it and then respond confidentially to me with a "Yes" or "No". If you say Yes, you are entitled to hear the other party's response, but your Yes is not communicated to the other party unless it also said Yes. If you say No, you are not entitled to hear the other party's response. Thus, no party risks a unilateral move - the case either settles for the proposed terms or nobody's position changes.

How to Use This Process Effectively

• Take advantage of the control which Separate Meetings give you over the use of information.

In every negotiation, there is information which is useful to putting an acceptable agreement together but too risky to discuss with other parties because it might be used by them to your disadvantage (e.g., underlying concerns, actual rather than apparent negotiating targets or priorities, etc.). In a Separate Meeting, however, any information you tell me not to disclose to other parties is kept confidential. The more useful information you are willing to candidly discuss with me, the more effective I can be in helping you reach an agreement that is acceptable to you. The less useful information you are willing to candidly discuss, the more like a conventional, deception-based negotiation the process will become. That is a woeful waste of the powerful information processing and risk-reducing capabilities of the mediation format.

• Stay focused on developing realistic settlement proposals.

Insistent, unbalanced advocacy during the Separate Meetings is counterproductive in this process. That tactic may work well with evaluative mediators who see their primary function to be hearing the parties' presentations and then telling them what the mediator thinks are reasonable settlement terms. In my process, however, you develop your own proposals for consideration by other participants. I believe a mediator settlement proposal should be viewed as a last resort, to be made only for parties who jointly request it (see above).

• Come to the negotiation with a willingness to be flexible and an open mind.

Recognize that this is a dynamic process during which a large quantity of information will be processed - information generated by you, by other parties and by the mediator. You will have to make decisions along the way, and the quality of those decisions will be better if you make them based on what you know and feel at the time you are making them, rather than on a rigid "bottom line" position adopted before the negotiation begins. Each party is of course encouraged to discuss strategy and goals before the session, but a prior fixing of a bottom line with no possibility for reassessment during the negotiation fails to take advantage of all this process can offer.