Dealing with the Competitive Negotiator Tactics for negotiating a litigated case depends upon the style of the mediator and the approach of the advocate. Before beginning the mediation session, ask the mediator to define his or her style. Some mediators choose an approach much like that of a messenger, where they exchange numbers back and forth and actively make recommendations on the numbers. Others might use a more facilitated evaluation, which tends to encourage the parties to come up with their own understanding of risk that might also be more interest-based. Whatever the approach, a litigator must be aware of the direction in which the mediation might go before it begins.
Many litigators approach mediation in a competitive manner.
They view the session as an extension of the litigation battlefield and make negotiations difficult. The cooperative litigator is hopeful that the negotiation will achieve her ultimate goal to settle the case and will assume that the other side is at the bargaining table for the same purpose. It is not unusual for cooperative litigators to put all their cards face up on the table and hope for a cooperative solution. Unfortunately, the competitive litigator might view this willingness to cooperate as a sign of weakness and attempt to take advantage of the negotiation. However, litigators in a mediation must be mindful of the possibility of losing opportunities for the client by maintaining a cooperative attitude throughout a negotiation with a competitive player.