The concept of “anchoring” is as applicable in mediations as in any other negotiation setting. The first demand and counter-offer are critically important in that they are capable of communicating either hopelessness or glimmers of hope to the opposing party. An ineffective demand or counter that fails to achieve a client’s objectives, ones that are well below (if you are the defendant) or well above (if you are the plaintiff) what a client’s final position will ultimately be, and a party knows will be totally unacceptable to the other side, is not necessarily a productive negotiation strategy.
Experienced negotiators are never in a rush to communicate their bottom line too early to either the mediator or the opposing party. Having taken the care to develop a negotiating strategy, experienced negotiators let that strategy work, as well as the mediation process, in a natural and holistic flow.
When in trial, it is often critically important for the jury to believe that the attorney is the “smartest person in the room,” an impression that the trial attorney may intentionally convey particularly when cross examining the opponent’s expert witness. However, in the mediation setting listening, observing and learning is far more important than demonstrating one is the smartest person in the room.
Experienced litigators do not confuse trial advocacy with mediation advocacy. They are completely different types of advocacy as they have radically different purposes. In a trial or arbitration, the attorney is attempting to convince the trier of fact of the righteousness of the client’s position(s). In mediation, advocacy is obviously designed to effectuate a resolution that is acceptable to the client.
As stated by a respected philosopher, positive “conflict lies at the core of innovation.” Indeed, positive conflict is a component in literally all successful mediations. As any professional Team Leader knows, a critical ingredient to the success of a highly effective and well-functioning team in solving difficult operational or other business problems is the ability to generate, embrace and harness the power of positive conflict.
