What strategy do you use to find settlement leverage?
1) Empathy as Leverage: Often, new non-attorney mediators will try to create empathy within one or both parties to create settlement leverage. They will ask questions designed to get a party to “walk a mile in the other party’s shoes,” try and see what the other person is going through.
2) Understanding as Leverage: A close kin to the empathy approach is the strategy to create understanding between the parties. If one or both parties could just understand where the other person is coming from, see the problem from their perspective, then such understanding can be leveraged for settlement. This is the most common strategy used by novice mediators.
The problem with these two strategies is the first attempts to change one or both parties’ feelings. The second strategy attempts to change one or both parties’ minds. Do you know how much energy it takes to change a person’s feeling or their thinking? Neither strategy is necessary to find settlement leverage. In addition, both of these strategies are highly disfavored in business disputes. They are too “touchy-feely.”
3) Risk Assessment as Leverage: Most of my new attorney mediators favor this approach. I think because it employs tools with which they are well practiced. Measuring the risk of going to court or the risk of increase legal fees can become leverage for settlement. In some cases, going to mediation late in the case (as opposed to early) can increase the power of this strategy. This strategy leverages settlement because it is better to take a bad offer then risk greater loss as litigation continues.
4) Guilt as Leverage: I see my manager and EEO counselor mediators use this strategy to create settlement leverage. A close kin to risk assessment as leverage this strategy leverages settlement because it is better to settle in mediation then to have an investigation or inquiry uncover something or create a perception that could damage one’s reputation or career.
The problem with strategies 3 & 4 is each requires the party to embrace a distasteful outcome as their settlement. But should these problems even matter as long as a settlement is reached?
5) Need Assessment as Leverage: This is the strategy I favor. The leverage in any negotiation is the need of the other party. If I know what your need is, and I am able to do something that will get your need met, then I am in a very good position to ask you to consider doing something for me that would get my need met. A negotiated exchange resulting in the mutual satisfaction of both parties’ needs can produce powerful leverage for settlement.
Are all settlement strategies equal? If the goal of mediation is to end the dispute, then should any settlement leverage that produces an agreement be tagged a successful strategy? Or are some levers better than others? Is our focus on ending the dispute – which is the role of court? Or is there another standard by which we as mediators could be held?
Interested in this topic and learning more about settlement leverage? Register NOW for “5 Strategies for Finding Settlement Leverage” with 1 hour CE for GODR happening Nov 18th @ 7:00 pm ET / 4:00 PT. (HURRY, Seats for this webinar usually sell out.)