Briefs

By Tom Noble

6116 N. Central Expressway, Suite 922, LB 72

Dallas, Texas 75206

214-692-1888; fax: 692-8577

tnoble28@hotmail.com; www.tnoble.com

Friday, January 30, 2009

Improving Family Law Mediation - Part Four

Let's review. In recent newsletters, I made 7 suggestions for improving family law mediation:

1. Knowing when to mediate.

2. Using Agreed Orders to Mediate.

3. Better preparation by attorneys.

4. Better preparation by the mediator.

5. Mediators should mediate, not arbitrate.

6. More flexible formats.

7. Better time management.

If you missed these missives, you can find them at tnoble.com. Continuing with this series of sermons, if you please:

8. Knowing the difference between cooperative and competitive negotiators: Professional mediators and advocates should know the difference between cooperative negotiators and competitive negotiators. Making this one determination speaks volumes. This powerful tool will teach you a lot about a negotiation, no matter what the negotiation involves and no matter what role you play. But, before we get too far into the weeds, we need to clarify the nomenclature. So, let's begin by dividing the universe of negotiators into those with a cooperative style and those with a competitive style. What's the difference?

According to Professor Gerald Williams, author of the classic Legal Negotiation and Settlement (West, 1983), the "average cooperative negotiator" is "realistic, self-controlled, careful, discrete, objective, analytical, fair, loyal, perceptive, helpful, deliberate, experienced, and organizing." The "average competitive negotiator" is "argumentative, ambitious, demanding, a bluffer, egotistical, evasive, suspicious, greedy, headstrong, impatient, complaining, quarrelsome, and unpredictable." Both types can be EFFECTIVE. So, let's divide the universe again.

Effective cooperative negotiators "seek to facilitate agreement, they avoid the use of threats, they accurately estimate the value of cases they are working on, they are sensitive to the needs of their clients, and they are willing to share information with their opponent. It appears from these items that their strategy is to approach negotiation in an objective, fair, trustworthy way, and to seek agreement by the open exchange of information. They are apparently as concerned with getting a settlement that is fair to both sides as they are with maximizing the outcome for their own client."

Effective competitives "are seen as dominating, competitive, forceful, tough, arrogant, and uncooperative. They make high opening demands, they use threats, they are willing to stretch the facts in favor of their clients' positions, they stick to their positions, and they are parsimonious with information about the case. They are concerned not only with maximizing the outcome for their client but they appear to take a gamesmanship approach to negotiation, having a principle objective of outdoing or outmaneuvering their opponent. Thus, rather than seeking an outcome that is 'fair' to both sides, they want to outdo the other side; to score a clear victory. ... Competitive effectives are careful about the timing and sequence of their actions which underscores the gamesmanship element of competitive negotiating behavior."

"Cooperatives feel that cases should be evaluated objectively, on their merits, and that both sides should seek to find the most fair outcome. Competitive [negotiators] view their work as a game in which they seek to outwit and out-perform the other side." to be continued ...

As my friend Deborah once advised me wisely: "Nobody ever died from splitting up furniture."

Elizabeth Gilbert

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