At The Mediation

Does each side have its own negotiator?

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Percy Burn Viaduct, New Zealand

The deal mediator is responsible for the negotiation process itself, essentially representing the transaction, and works on behalf of everyone collectively. He is a neutral third-party and does not negotiate for either side. Each party will have its own negotiator(s) in the mediation, and it’s the deal mediator’s job to help all of the negotiators negotiate better.

Phil Neiman is a Marin County based mediator who provides dispute resolution and deal mediation services ...

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If I allow a deal mediator to “help” the other side, won’t I weaken my negotiating position and give up something of value?

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Freedom Bridge, Budapest, Hungary

The short answer is: “no.” I often refer to this question as the “fallacy of the fixed pie.” Most negotiators see situations as a zero-sum game; that is, they believe that one side’s gain results only from the other side’s losses. This mindset can be roughly translated as: “The less he gets, the more I get.” Put another way, they see things in terms of a pie in which there is only a ...

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What if a deal mediation ends without a deal?

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Footbridge Over Mountain River, Annapurna, Nepal

At the mediation session, the negotiators will be presented with opportunities for making their deal and the mediator will encourage consideration of all options. The deal mediator’s job is to foster an environment in which the greatest number of proposals for efficient contract formation are put forth, but sometimes the options are not to everyone’s liking or what one party is willing to give, the other party is not willing to ...

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How does “brainstorming” work in deal mediation?

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Python Bridge, Amsterdam, Netherlands

Brainstorming is a technique used in deal mediation to expand the parties’ options. The process involves generating creative solutions through an open and unrestricted discussion in which everyone is encouraged to suggest as many ideas as possible to expand the deal pie and reconcile their interests. Brainstorming works on the theory that the most beneficial transaction will be uncovered as the parties’ identify and explore the greatest number of alternatives. In other words, ...

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What is a “caucus” in deal mediation?

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Pell Bridge, Newport, Rhode Island

A “caucus” is a private meeting between the mediator and just one of the parties. When mediating disputes (as opposed to mediating deals), I tend to discourage the parties from caucusing because I believe that the transformative work of conflict resolution is done through the understanding that emerges when all parties sit together to discuss their differences. In deal mediation, however, I make heavy use of the caucus. My experience is that ...

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