In mediating case settlements, you have to know your negotiation audience. This is not as simple as it sounds. In negotiation, your audience is not the mediator. Your audience is your opponent. You have to persuade your opponent to move towards a settlement that is at least marginally acceptable to everyone. Without your opponent’s consent, there is no negotiation and no possibility of settlement.
Remember that the crucial decision-maker in the room sits across the table from you. You can only get what you want in settlement from your opposing counsel and party.
If you think about that for a moment, you will realize that the tactics you use in a courtroom will never work in a negotiation. If you point out your strengths and the other side’s weaknesses in negotiation, you are likely to alienate the very people you need to agree with you. If you attack the other side as unreasonable or acting in bad faith, you are insulting the decision-makers you need for agreement.
If you argue your case to the mediator, you are wasting your time. The mediator cannot force anyone to do anything and is not a decision-maker. Therefore, don’t treat your mediator like a judge or arbitrator.
Knowing your audience means that you must have a sense about the motivations for coming to mediation, why settlement might be possible, and what the potential barriers to settlement might be. How does your audience evaluate and manage risk? How does your audience view the substantive facts? How does your audience value the case for settlement purposes and why? What negotiation strategies can you use to induce your audience to reciprocate? By focusing on your audience instead of on your own case, you will see substantially better results in your negotiations.