As in any field, pre-planning will optimise your chances of success so before any mediation, time spent in preparation will usually be well rewarded. You will want to consider how best to capitalise on the opportunity the mediation offers you to get the settlement you want.
One of the main things you can do, is to think as much about your opponent’s position as about your own.
Parties often put considerable effort into the analysis and presentation of their own case. They will consider their position, informed by their best and worst outcomes if they do not reach a negotiated outcome, they will consider parameters for the settlement they would wish to secure and will think through their needs, concerns and interests. All of this is very important and useful.
In my experience, however, what parties frequently overlook is a similar consideration of their opponent’s position. Parties should always consider the other side of the coin. What are the strengths and weaknesses of their opponent’s case? What might be their concerns and needs underlying the dispute and which might drive a settlement, and what will be the other side’s Best Alternative to a Negotiated Outcome or Agreement (“BATNA”) and Worst Alternative to a Negotiated Outcome/Agreement (“WATNA”)?
Understanding you opponent’s needs and concerns can inform your negotiation strategy and in some cases may reveal areas where you could make low cost concessions which would nonetheless be valuable to your opponent.
So, in summary, put yourself in your opponent’s shoes if you want to make the most of your mediation day.
Sue O’Brien – Mediator – Oxford Mediation