No offers, no deal
Let’s set the scene: you have 4 hours set aside with a family mediator. You and your ex have had a bad, bad breakup with lots of acrimony, anger and mistrust. In two weeks, you will be going to trial - an expensive and emotionally exhausting process that will polarize you and your ex, parents of two children, even further. The mediator has rolled up her sleeves and is ready to help you both walk through the door of settlement. The parties and their lawyers are sitting at the negotiating table (in person or virtually) - what next? Someone needs to make the first offer. Is that you?
A bit of context: if you have been in court long enough to have an actual trial date, chances are that you and your ex have already exchanged offers to settle, at least one each. But since you are proceeding to trial it sounds as though those offers were not ones either of you was prepared to accept - so you are trying mediation. Now the question is: who makes the first offer in the context of mediation?
What I hear first and foremost in response to this question is: “I don’t want to negotiate against myself” or “If the other side wants to show me they are prepared to negotiate in good faith, let them make the first offer”. Fair enough, but if each side takes this position and does not make the next move by presenting an offer, we will be wasting the time we have set aside to work together. Someone needs to take the first step.
I am going to comment further on the two responses I receive:
“I don’t want to negotitate against myself” ~ This is often an expression of your fear that the offer you make will be higher than what the other side would be prepared to accept. In other words, that you will be offering more than the other side is looking for. That is possible but unlikely to happen if you work with your lawyer on making a smart and informed offer. Do not run - walk. In these early stages of the negotiations, the key is to show willingness to move and to actually make linear progress. With each side taking this approach, the likelihood of growing momentum toward settlement is more likely. Have you ever tried to push a car that ran out of gas? If so, you know that the first push is the hardest, it often requires the most effort. Once the car begins to move, every additional effort appears to double or even tripple the result. Early mediation negotiations are like that. So give that car the first push. In fact, come to mediation with your first offer in mind.
“If the other side wants to show me they are prepared to negotiate in good faith, let them make the first offer” ~ Here is what you might consider: the other side has already shown they are willing to negotiate by coming to mediation in the first place. No one schedules a mediation session, and makes the necessary financial investment in the process, on the basis that the parties will just spend the day repeating their last offers, over and over again, or perhaps even restate their litigation (court) positions. The other side’s willingness to come to mediation already says volumes. As for “good faith”, that is a slightly other matter but in my view, in mediation each side needs to make a bit of a leap of confidence. During a classic mediation, several offers are exchanged, back and forth. Once made, they may not be seen by the recipient as being fair but remember, “good faith” is in the eyes of the beholder. Forward momentum is crucial. The mediator then has tools to work with, to hopefully broker a deal.
Sometimes, I hear people say: “The other side will never make an offer, this mediation may be a waste of time”. There is a tone of defeat and maybe even disappointment in that statement. Fair enough - I have to, and do respect there are reasons you have formulated this view. But then an offer from the other side comes across the table and that brings a significant change in the negotiating landscape. Suddenly, the doubter is encouraged and an actual dialogue begins.
Effective negotiating is not easy. It takes courage, strategy and perseverance. It takes patience. It takes leaps of faith from time to time. It CAN result in settlement. But remember ~ no offers, no deal.
If you have any questions about our mediation services, please contact Carolyn and she will answer them for you.
©AJJakubowska
