Mediation Advice/Martin Rosenfeld

Posted on December 10, 2012


A recent article appeared at (no cited author) with the following advice about mediation:

1. It pays to be nice.

2. Don’t be afraid to make the first move.

3. Never move backwards. (This is meant to convey that once you have proposed something, do not change your mind.)

The above-cited advice is well-stated but is not always proper advice, unless it is qualified.

1a. It does pay to be nice. Often it leads to another party reciprocating. But some people, who prefer to bully or be abusive, will take advantage of niceness. So by all means be nice, but only if you have reason to believe this will not be taken as a sign of weakness. If you have been victimized by domestic abuse, I would forego the niceness tactic. But in many cases it does work. You need to need the emotional makeup of your bargaining “partner”.

2a. Often taking the first move will prevent a logjam. Sometimes it will only lead to a need to keep on taking the first move. This is similar to the prior advice; it often makes sense to do this, but know you other side’s manner of negotiating.

3a. I do not believe that a party needs to remain locked in to a prior position. People misspeak, misunderstand, etc. I would rather state that you must negotiate in good faith. If you change a position explain why you have done so. Do not “move backwards” without good reason, but do so if events requite this.

No advice works all the time. The best advice is to work in “good faith” when you negotiate. Be nice but not a patsy. Be firm but not inflexible. Good faith will take care of the rest.