Positive Negotiations, Part 5: The Benefits of an Appreciation of Each Side’s Best Evidence

In this video, I introduce the third step in the positive negotiation process - the evaluation, or appreciation, of each side’s best evidence - by explaining why doing such an appreciation can be so helpful. 

Video Transcript

So far in this series, I have focused on the first two steps in positive negotiations: 

First, framing the real problem everyone faces at a mediation - which is the prospect, and the associated risks, of someone else resolving the parties’ dispute, typically through a trial, if they cannot resolve it themselves; and

Second, negotiating from the best evidence each side can present at any trial rather than from each side’s opposing “positions.”

Now I am going to introduce the third step in this positive negotiation process - the evaluation, or appreciation, of each side’s best evidence.  And today, I will explain why this appreciation process can be so helpful.  

Now the truth is that any professionals involved in a dispute - including lawyers, insurance adjusters, and any other risk management professionals - will have already made their own appreciations before they appear at a mediation, and they may ask “why do this again?” “Can’t we just negotiate from what we have already done?”

Those are fair questions, and here are my answers. 

First, going through this appreciation process gives those lawyers and other professionals the opportunity to add their knowledge and experience to the mediation effort.  They will know the details of the dispute better than anyone else, and given their experience they will understand the impact those details can have at any trial.  Going through this appreciation process at a mediation gives everyone the benefit of their knowledge and experience. 

Second, the actual parties to the dispute - the plaintiff and the defendant - are typically new to litigation, mediation, and trials.  Oftentimes it is very helpful for them to go through a frank but fair appreciation process, especially when it is orchestrated by someone who is truly neutral.  It can be enlightening for them, revealing risks they may not have appreciated beforehand and giving them added reason to negotiate in an effort to manage those risks through a settlement. 

Third, it provides each side with the opportunity to acknowledge the other side’s best evidence and the risks that evidence creates.  And doing that can build trust - which is a critical catalyst in any negotiation effort.  It can encourage an opposing side to rethink any position they may otherwise hold.  Organizational psychologist and Think Again author, Adam Grant, noted this about disputes with others: “When we point out that there are areas where we agree and acknowledge that they have some valid points, we model confident humility and encourage them to follow suit.”  This process of acknowledgement and reciprocal acknowledgement is how we can build consensus.   

Fourth, during this appreciation process, each side can articulate to the mediator why and how their best evidence creates risk for the other side, and what the consequence of that risk may be for that other side.  And this is the advocacy every lawyer wants and needs to do, but doing this through the mediator during a carefully managed appreciation process circumvents the direct, party-to-party positional exchanges that can otherwise strain relationships, trigger distrust, and impede negotiations.  In short, it provides a diplomatic way of getting your point across. 

Fifth, there is always value in revisiting, reconsidering, and possibly even revising one’s earlier evaluation.   Again, in his book, Think Again, Adam Grant observed this about the best forecasters:  

“The single most important driver of forecasters' success was how often they updated their beliefs. The best forecasters went through more rethinking cycles. They had the confident humility to doubt their judgments and the curiosity to discover new information that led them to revise their predictions.” 

And of course, an appreciation in the context of litigation is a process of forecasting how a judge or jury may decide a given case.  A mediator can tactfully encourage that high-value review during the appreciation - or forecasting - process, and they can do that discretely and confidentially in separate caucasus.

But the biggest benefit from going through this appreciation process is it draws people away from the pure advocacy mode and toward a more analytical frame of mind.  And if people want to reach a negotiated resolution, and one that in their minds “gets it right”, they will more likely get there if they adopt that more analytical approach.  It helps each side to understand and appreciate their respective risks and to collectively manage those risks through a negotiated, and therefore shared, resolution.

Now, in my next video, I will discuss how we can engage in this appreciation process in a way that encourages this constructive, analytical approach.  

Until then, goodbye.