Explore the Information Exchange
Small Steps Leading to Trust or Distrust: Most trained negotiators are familiar with “The Prisoner’s Dilemma,” and the “Iterated Prisoner’s Dilemma.” A simple web search will lead to explanations, and these dilemmas are also explain in many negotiation books. See e.g., B. Goldman, The Science of Settlement: Ideas for Negotiators, ALI ABA (2008) at Sec. 3.03(b). The lesson from these behavioral studies is that negotiators should start exchanging information in small steps of little consequence. When the opposition replies with similar small and cooperative steps, trust is built, which in turn leads to greater information exchange. If the opposition fails to respond in kind, little is lost by the initial exchange, and the parties can either try again, or walk away from the table.
Use of Interest-Based Discussions: Sometimes parties fear that agreeing to negotiations will demonstrate weakness to the opposition regarding the merits of the dispute. If that is the case, the party should use interest-based discussions to broaden the conversation beyond merely rights-based litigation positions. When the parties discover ways to mutually satisfy underlying interests, they may be able to disregard the merits of the dispute as they resolve the controversy.
Timing of Disclosures: Stud poker players reveal their cards one at a time as they cycle through consecutive rounds of betting, hoping to build the pot before convincing the other players to fold. Often, the final fold occurs before the winner’s last card is revealed. Similarly, many litigator-negotiators know that sometimes a deal can be struck without a full-blown evidentiary dump during the first session of mediation. Instead, they pull out their evidence bit-by-bit to establish the strength of their hand, and then reiterate that strength as they reveal more evidence later during the mediation.
Timing of Disclosures – Revisited: The timing of the mediation process is flexible, and just as a party without sufficient information can walk from a deal, that party can also delay a deal until better information is produced. It is very common for a mediation to last several weeks as parties research, identify, and produce relevant information needed to reach a resolution. Rushing the process rarely improves the process.
Leaving the Table — ADR is Voluntary under 5 US.C. 572(a): The Administrative Dispute Resolution Act (ADRA) of 1996 plainly establishes that ADR is voluntary, which means that litigation remains a fallback option for nearly all ADR processes except binding arbitration or summary trials. In fact, parties can not reasonably blame an arm-twisting mediator if they reached a bad settlement. Why? Because no mediator has the power to force a party to settle a case. If a party has distrusts the quality of the information they have or the wisdom of settling, then that party should not settle the case.