Aggressive Negotiation in Mediation: Can It Hurt Your Claim?

There are many philosophies regarding the most effective negotiation techniques. Some people recommend an aggressive approach, while others prefer collaborating with their negotiation partners. 

Aggressive negotiation techniques include making extreme demands, setting hard deadlines, using aggressive language, and issuing ultimatums. In contrast, collaborative negotiation focuses on making reciprocal offers and concessions with the other party.

Both types of strategies have their place, and knowing which you should use in a given circumstance is important. For example, during the mediation process, aggressive tactics could impair your ability to achieve your goals. Here’s what you should consider during mediation, the risks of overly aggressive tactics, and strategies to make the process more successful.

Remember the Goal of Mediation

Mediation is unique among forms of negotiation. Instead of two parties meeting independently to hash out a disagreement or contract, the parties are meeting under the guidance of a trained mediator. The goal of the process is to resolve a conflict by collaborating to find a solution instead of going to court. 

This is significantly different from the most common forms of negotiation you may be familiar with. Many people view negotiation as a form of competition, where the goal is to “win” the interaction by coming away with a better deal than the other party. That attitude can be successful when making sales or drafting initial business contracts, where both parties can walk away at any time without losing anything. However, that’s not usually possible during mediation. 

Most mediation occurs when two parties are already bound by a contract or legal obligation and disagree on how it has been or should be managed. For example, two businesses may enter mediation if there is a contract dispute. Similarly, an employee and employer may pursue mediation if there is a conflict regarding alleged discrimination. In these cases, one or both parties have something to lose if the mediation fails. It often leads to lengthy and expensive legal proceedings where no one walks away happy. 

The Risks of Aggressive Negotiation Strategies in Mediation

While aggressive tactics do not always lead to failures in mediation, they often make the process more difficult and lead to less satisfactory outcomes. Some of the most negative impacts of an aggressive rather than collaborative approach include:

Reducing Good Faith

Successful mediation relies on both parties acting in good faith. This means coming to sessions prepared to actively listen to the other party and make genuine suggestions and concessions. Good faith is reciprocal, so if either party fails to make a sincere effort, the other party will likely cease as well. When neither participant is prepared to act in good faith, the negotiation process often grinds to a halt, and it may be necessary to pursue litigation instead.

Breaking Trust

A skilled mediator can help parties restore trust after a conflict if they enter the process genuinely intending to find a compromise. This is one of the biggest benefits of business mediation as a whole. However, taking an aggressive approach can break trust further. 

For example, if an employee agrees to mediation with their employer regarding a discrimination claim, their faith in the company has been damaged. If the employer proceeds to make extreme demands, it may completely break that trust and goodwill. The employee is now significantly more likely to pursue an equally aggressive lawsuit than remain in mediation.

Preventing Compromise

Aggression during negotiation is antithetical to fair compromises. Aggressive tactics result from an adversarial mindset and the belief that there must be a “winner” and “loser” in every conflict. If aggression is your first move, you shut down the potential for collaboration. You’re significantly more likely to face equally aggressive responses from the other party because they do not believe you would respond fairly to measured, equitable compromises.

Alternatives to Aggressive Negotiation Tactics

There are many alternatives to these high-aggression techniques that can achieve better results. Some of the most effective strategies include:

  • Identifying the other party’s priorities: When you know what the other party cares about, you can better make smart tradeoffs. For example, if your company’s top priority is avoiding liability for a discrimination claim, while your employee’s priority is receiving recognition for their work, you could offer a bonus or raise in exchange for a signed liability waiver.
  • Performing active listening: The only way to find out what the other party wants is by listening to what they tell you. Ask questions and have an actual conversation without assigning blame or trying to defend any party. This can help you narrow down the scope of the issue while making the other party feel heard and trusted.
  • Making reciprocal offers: Once you’ve identified priorities and the scope of the issue, you can begin collaborating on a solution. One way to accomplish this is by making reciprocal offers or offering a concession in exchange for what you request rather than making demands unaccompanied by concessions.
  • Presenting multiple equivalent offers: Similarly, you can make multiple offers simultaneously. In the employee discrimination example, you could offer them three alternatives: a raise, a transfer to a different department, or a promotion in return for the liability waiver. The employee can then choose the solution that best suits them, which encourages an atmosphere of collaboration. 

The Role of a Mediator in Maintaining a Collaborative Atmosphere

Mediators are crucial in helping maintain a collaborative atmosphere rather than an adversarial one. Working with a skilled mediator can help you and the other party remain focused on compromise rather than slipping into more aggressive tactics. As such, choosing the right mediator makes all the difference in the outcome of your dispute. The Law Offices of Denise Eaton May, P.C., can help. Our skilled mediators and litigators are available to guide you through a successful, collaborative dispute resolution process. Learn more by scheduling your consultation today.

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