Every mediation is nothing more than a “facilitated negotiation.”  The mediator attempts to identify the different negotiation styles to determine whether they are compatible or adversarial.  Obviously, if the styles are adversarial, the work of the mediator is more difficult.

Here is a summary of three common negotiation styles. Negotiators would be well served to adopt the style that will produce the best results and avoid the style that will create toxic negotiating atmosphere.

  1. Competitive or Combative Style – In this instance the goal is to “win” regardless of the effect upon the other party.  One who utilizes this style is uniquely focused upon their own outcomes without regard to the consequences to others.    In the context of negotiating a settlement of a legal dispute, this style often appears rigid and uncompromising and often is counterproductive to a settlement unless the other side to the negotiation has reason to settle notwithstanding the combative approach being utilized.
  2. Accommodation Style – This is the opposite to the Competitive Style.  A negotiator who wants to avoid conflict and presents a position that appears to accommodate the demands of the opposition is often characterized as one practicing an accommodation style of negotiation.  On the surface, this may appear to be a weak style; however, that is not necessarily the case.  Granted it is usually not a good idea to counter a competitive style with an accommodating style as it will be perceived as a sign of weakness; however, this style might be appropriately and successfully utilized when the goal is something other than “winning”.  For example, a party to a dispute may determine that fighting the dispute (costs, energy, reputation, etc) may just not be worth it.  It is more important to quickly put the matter behind them so that they can move forward.  In this instance, using an accommodation style may be disarming and may result is a softer and more acceptable response and accomplish that which is desired.
  3. Collaborative Style – This is the classic “Win-Win” approach to negotiations. In this instance a negotiator has taken the time and effort to understand and appreciate not only his own interests but also those of his opposition.   The discussions are focused on identifying a result that accommodates both parties’ needs without either party compromising what is important.  To employ this approach, there has to be a willingness to forego the instinct to prove oneself right at the expense of the other party.  The concepts of win/loose and right/wrong are put aside.  This is sometimes extremely difficult when the negotiations are in the context of a hotly contested litigation.  Likely, the case was commenced and litigated premised upon proving one party right and one party wrong.  A change of focus is required if counsel and the parties decide to work collaboratively to seek a satisfactory result.

One reason that mediation works very well in improving the negotiation process is because it helps defuse the natural conflicts created by differences in negotiation styles.  Mediation is generally set up in a structure that isolates parties from negotiation style conflicts. The most common mediation process tends to take the negotiation style out of the process and reduces the matter to positional shifts and objective statements.

As a mediation progresses from the initial pre-mediation telephone conferences, a skilled mediator identifies the competing negotiation styles of the parties and adjusts the process to accommodate the differing styles. Often, the various styles need a mediator to buffer the interactions and turn a toxic negotiating atmosphere into a successful mediation.  The end game for the mediator remains the same: find a suitable resolution to satisfy the interests of the parties without compromising that which they identify as most important.