September 2019


Failing to plan is planning to fail

by Hayden Wilson*

I train advocates and organisations in effective negotiation skills for mediation.

Almost inevitably, someone asks: “What is your single most effective technique for being successful in negotiations?”

From my experience, as a mediator and a counsel in mediations, the answer is not a secret negotiation jujitsu move that leaves your counterparty unable to respond.

The simple answer is the party that plans and prepares for the mediation or negotiation in the smartest way usually gets the best deal.

Most lawyers (inhouse and external) plan their approaches effectively. They carefully consider their options, assess and understand their “best alternative to a negotiated agreement”, know their preferred settlement range, and are realistic about their costs exposure.

Consequently, they have a clear idea about how they expect the negotiation will proceed.

Former US Defence Secretary Jim Mattis once said: “In my line of work, the enemy gets a vote.” While mediation isn’t warfare, and you plan for what you want to happen, how well prepared are you for the unexpected?

Failing to anticipate the unexpected can lead to an impasse, as you and your team are presented with complex information and limited time to digest it.

A stalemate can occur, as you find yourself outside the ambit of your authority to do a deal – often a particular problem in disputes involving public sector agencies that have more formal authority processes.

Most importantly, it can mean parties fail to take the opportunity to expand the scope of discussions and really consider alternative options that might be of more value to their organisations. You don’t have time to carefully consider the benefits and risks of a new proposal, or the people who can are not in the room.

The best way to avoid the unexpected hurdle is to expect it – or at least to expect the unexpected. An easy, but often neglected, way to achieve that is to spend almost as much time thinking about the other party’s position as you do your own.

Analyse their case through their eyes. Think about their business and their needs, wants and interests. Ask yourself: if I were in their shoes what would I want to get out of this process?

Another immensely useful tool is a shopping list. Sit down and make a list of all the things your organisation could do for theirs and what they could do for yours.

Importantly, don’t limit yourself to the narrow framework of the dispute – think broadly and creatively. Make a list of little things (a customer reference or an introduction to a possible client) and big things (a new contract in an unrelated area).

Reality test those ideas within your organisation before the mediation and tuck the list in your back pocket for when things get tough or the unexpected happens.

In my experience it is rare for anything on those lists to make it unamended into any settlement agreement. But it does happen.

The benefit lies not so much in getting what is on your shopping list, but being able to spark the negotiations back into life when impasse looms.
Done well, it means you are prepared when a proposal comes out of left field – chances are you’ve already thought of it, or something like it. You understand what its risks and benefits might be and, if it is a realistic possibility, the right people are in the room or available by phone.

*Hayden Wilson is a partner and mediator at Kensington Swan, New Zealand.

Back to top

Resolve is the official publication of the Australian Insurance Law Association and
the New Zealand Insurance Law Association.