Negotiation often hits roadblocks, but impasse-busting techniques can help move the process forward. Here are some strategies and insights on how to overcome these hurdles and improve the negotiation process.

The Mediator’s Bracket

One effective technique at both the early and late stages of mediation is the mediator’s bracket. Early in the mediation, parties may be too far apart for effective bargaining. For instance, defendants might refuse to offer a substantial amount unless the plaintiff lowers their demands, while plaintiffs insist on a six-figure offer to proceed. The mediator’s bracket can help bridge this gap. The mediator proposes high and low numbers that neither party has offered or demanded, creating a range that encourages negotiation. Even if the parties reject this bracket, it fosters a productive discussion about potential compromise points.

Late in the mediation, the mediator’s bracket can help close the settlement. By then, parties may propose their own brackets with the mediator’s guidance, using the mediator’s bracket as a fallback if needed. This technique facilitates an increased pace of negotiation and helps overcome stalemates.

Challenges for Contingency Representation Seekers

Seeking contingency representation can be challenging, especially when potential clients inadvertently hinder their own cases. Common mistakes include:

1. Accusations of Corruption: Making baseless claims of judicial corruption and fraud can obscure the merits of a potentially strong case. This approach wastes time and detracts from the substantive issues at hand.
2. Obscured Case Merits: When clients focus on unfounded accusations, the core strengths of their case get buried under irrelevant information. It’s crucial to present a clear, concise case to attract contingency representation.
3. Client Difficulties: Contingency arrangements require the lawyer to assess the case’s potential and the client’s reasonableness. Difficult clients can pose significant challenges, making lawyers less inclined to take on their cases. Like dining at a restaurant where you pay for what you order, contingency lawyers must be selective and strategic in their case choices.

By understanding and implementing these impasse-busting techniques and avoiding common pitfalls, parties can improve their chances of successful negotiation and representation.