Negotiating skills


Use polite and attentive body language

Ask clarifying and open-ended questions such as :”Can you explain that again?” Or “ So what you’re saying is…? “ Or “ What led you to think that?”

Silence and careful listening. Silence is a vital communication skill.

Call time out to recharge your energy levels and reflect and plan, and/or to allow the other party to similarly calm down and recoup and reflect and plan.

Verbal following skills which show that you are following what the other party is saying such as: “I see” “Mmm” “Ok”

Empathic comments such as: “I can understand you feel that way because…”

Summarising: for example…” So your perspective is…”

Speak slowly and clearly

Avoid interrupting the other party unless the other party has begun to hog the debate.

Try to get dialogue going directly with the other party if that is possible and can be productive rather than addressing all your comments to the mediator.
Attack the problem rather than the person.

PREPARING FOR MEDIATION

Selection of mediation model and mediator

There are various forms of mediation and in particular you might choose facilitative mediation or you might choose evaluative mediation. In facilitative mediation the mediator will input on process and exploration of issues but will play no evaluative role. In evaluative mediation the mediator will be called upon to assess qualitatively the case of each party and intervene to express her or his opinion, views, or concerns in order to assist the parties to come to a resolution if the parties are unable to resolve matters themselves.

Some of the factors to be taken into account when considering if evaluative mediation is apt, will be the complexity of the issues; how far apart the parties are and how significant is that in terms of rights, interests, amount of money; the extent to which the parties are wedded to positions; whether expertise may be likely to shift the parties to settlement; and comparative costs. Very often the only expertise required is the weighing up of factors of fairness but here the presence of a wise 3rd party is just what is required.

Call in the mediator
Let the mediator know either in joint session or call for a break and tell the mediator in private session if you are experiencing difficulties.

Have regard to the mediator’s role
The mediator will endeavour to assist the parties achieve an outcome that meets the needs of stakeholders and appears just and fair. Consequently it is helpful to reflect this in your submissions in mediation. So for example when attempting to resolve parenting issues, the mediator will endeavour to keep the parties focussed on the best interests of the children. Thus it will help to address the best interests of the children in each of your submissions as distinct for example from beginning : “It is my right…’ On the other hand in negotiating parenting issues you should be assertive as to your own critical needs because for children to thrive they require positive role models in their parents who are getting on with their lives and able to interpret their lives positively.

The following is a Guide to Mediation which can be perused by clients who have a dispute that might be amenable to mediation.

It can also form a useful checklist for Solicitors preparing for mediation. Note that issues around the utility of arbitration as distinct from mediation or hybrid models of reconciliation/mediation/arbitration [with a binding decision to resolve the issues] might need to be considered before or in addition to the factors set out in this Guide.


GUIDE TO MEDIATION

The Australian National Mediator Standards explain that the purpose of the mediation process is to maximise participants’ decision-making and they describe Mediation as a process in which the participants, with the support of the mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator acts as a 3rd party to assist the participants to reach their decision.

We set out the factors and considerations you may need to take into account when deciding your approach to mediation and within the mediation.