By Patricia Barrett, CFP CDFA Mediator
Attacks against your status:
Sometimes parties to mediation will stoop to tactics such as purposely making you uncomfortable through seating arrangements, temperature or otherwise making you physically ill at ease. This could be a ploy to rush you through mediations. If it is really too uncomfortable, arrange to have the mediations resume at another place and time where objective and principled mediations can occur. Be honest in the reasons for your discomfort, but do not accuse them of subterfuge.
Sometimes the ploy is to attack your status by insulting your apparel or making you wait for a long time or interrupting you. Even refusal of eye contact can be a negative tactic. In each of these instances, bringing up the slight for discussion will probably eliminate it.
Skillful negotiators seldom use threats, since they normally lead to counter threats, destroy relationships, and derail mediations. Instead, a better method is to use warnings; stating what the consequences of a certain action would be. This doesn’t lead to counter threats. You should make it plain that you do not respond to threats.
Refusal to negotiate:
If the other party refuses to negotiate at all, talk about the fact explicitly, searching for underlying interests they may have. Don’t attack them, but find out the reason for the block. They may feel that mediation is futile. Or, it could be a ploy to frustrate the perceived opponents. This is where the use of a caucus can be useful - where the mediator shuttles back and forth between the opposing sides, carrying offers or discussion. As usual, the mediator is sticking to principles and objective standards.
Other tactics used In negotiations:
If the other party makes a very, very low offer, such as $20,000 for a $100,000 piece of property, ask them the basis for their valuation. Real estate has comparable values available through real estate brokers or on line. This lowball offer may be a ploy to bring the number down overall, even though they know it is unreasonable. It is unwise to allow such a lowball offer to influence the negotiated price.
Occasionally, a party to mediations will use the tactic of upping his demands every time a compromise is near. This ploy may be intended to pressure you into accepting the latest offer before it goes higher. If this occurs, take a break from the meeting and discuss privately how to proceed. Do not make decisions when the other side is exerting unfair pressure.
Locking in an offer:
If the other side has attempted to lock in a settlement through publicizing a tremendous dollar amount through news media prior to the meeting, you can explain to them that we all have our goals and desires. You can jokingly give your own best wish. Then, move on to discuss the issues as if this was all a humorous sideline.
Take it or leave it:
If the other party comes to the table with a “take it or leave it” proposal, it is possible to change the subject, perhaps to the consequences of failed mediations. This may be a time to bring up an objective standard of fairness in an attempt to reopen mediations. If it is possible, reduce the value of the property in order to change the whole basis of mediations and allow them to back down while saving face.
Principled mediation serves to preserve or improve relationships between the opposing sides. For instance, a divorcing couple would be wise to maintain a friendly atmosphere when child custody will be shared and ongoing contact required. This doesn’t mean one should give in to a more powerful individual to keep peace. Mediations allow both sides to experience a level of success, rather than a winner and a loser.
Even relationships can be negotiated to an extent. When issues of trust, reliability, coercion, emotion or lack of communication enter into play, the real substantive issues can be derailed. It is better to explicitly discuss these relationship issues, identifying the underlying interest associated with the feeling or behavior. Discussing these feelings can help to clear the air, improve the relationship and allow for mediations to continue. Remember, the better the communication, the better the chance for a positive negotiated settlement.