Common Mistakes When Negotiating and When Mediating

Harvard Business School Professors Deepak Malhotra and Max Bazerman wrote a wonderful negotiation book: Negotiation Genius. There are many powerful negotiation strategies in this book. They also point out seven common mistakes that negotiators make:

“1. You made the first offer when you were not in a strong position to do so.

2. You made a first offer that was not sufficiently aggressive.

3. You talked but did not listen.

4. You tried to influence the other party but did not try to learn from them.

5. You did not challenge your assumptions about the other party.

6. You miscalculated the ZOPA (zone of possible agreement) and did not re-evaluate it during the negotiation.

7. You made greater concessions than the other party did.”

Nancy Hudgens in her blog, Civil Negotiation and Mediation, posted the above rules and added some of her own. You can read them here. One she added was to come prepared to a mediation. I could not agree more. We were just involved in a divorce mediation where the parties could not agree on the assets and liabilities. This was at least one year into the case and neither side could provide proof of certain debt and assets which made for some uncomfortable accusations as well as real difficulty moving forward. For Pete’s sake, get your ducks in a row BEFORE you get to the negotiation room. Take the process seriously even if going in you do not believe anything will get accomplished. More often than not, people are surprised. You just never know what a good mediator can do.

If you cannot get certain information, then let the other side know. Perhaps the issues can be limited or the mediation moved or shortened. But coming unprepared can do irreparable damage to the process by destroying the trust necessary to begin good negotiations. When ambushed with unpreparedness which represents an “I don’t care” and disrespectful attitude then neither side can really invest in the process. You leave the mediator with a much harder job in that respect – nearly impossible really. And when the parties do not invest in the process, then it is just a waste of time and money and it is an unfair representation of the mediation process which is so fruitful when used correctly.

One last rule I would add to the list is to prepare the Mediator or neutral involved. The more knowledge and understanding the mediator has of each side – the good, the bad, and the ugly – the better prepared the mediator can be. While it is key for the mediator to remain open and aware and “in the moment” we have found that being prepared generally allows us to prepare ourselves correctly for what we are walking into rather than having to spend time understanding all of that during the actual mediation. We can prepare strategies and have some ideas about appropriate communication patterns, especially where the parties or attorneys are having difficulty communicating. Additionally, we often can help each side make sure they are completely prepared and not missing anything vital prior to the mediation. A neutral set of eyes and ears on your case is a good “check” to make sure you have dotted your i’s and crossed your t’s. Finally, with some foreknowledge, we can make some decisions prior to the mediation about how to start on a positive note which is so key to moving the process along.

We negotiate every day, all the time, in most of our conversations. The more some of these rules become ingrained in you the better your communication will be, the more you will know really what you need, what the other needs, and how to get there. Extrapolate all these rules out to your life – be it with your boss, your mate, your kids, your neighbor and you will see how well they work in every situation.