9 Steps to Breaking the Silence in Negotiation

Based on CEDR’s #askanegotiator podcast series, Philip Williams, former Hostage and Crisis Negotiator, explores how, when faced with silence in a negotiation, using psychological and communication techniques can help break the impasse and encourage dialogue. Strategies such as adopting an engaged listening posture, using emotional labeling, posing "no" questions, and highlighting the risk of loss can effectively prompt the other party to start speaking and foster a more productive discussion.

https://www.cedr.com/9-steps-to-breaking-the-silence-in-negotiation/

Client Guide: Making the most of Mediation

Mediation is a form of Negotiated Dispute Resolution (ADR), which involves a process of structured ‘without prejudice’ negotiation facilitated by an impartial third party known as a ‘mediator’. The aim is to produce a settlement of the dispute that is acceptable to both parties, and the process enables them to retain control over whether or not they wish to settle, and on what terms. Click here for the link to download the guide created by Nicola Gare of HFW:

https://www.hfw.com/insights/client-guide-making-the-most-of-mediation/

Churchill v Merthyr Tydfil Council: A game changing decision for local authorities

Phoebe Price of UK law firm Browne Jacobson, looks at how the Court of Appeal's decision in Churchill v Merthyr Tydfil Council allows courts to mandate parties to engage in non-court dispute resolution processes, such as negotiation, mediation, or internal complaints procedures, before taking legal action. This ruling provides local authorities with an opportunity to resolve low-value disputes more efficiently and cost-effectively by using their internal processes to address issues before resorting to litigation.

https://www.brownejacobson.com/insights/churchill-v-merthyr-tydfil-council-decision-for-local-authorities

Churchill v Merthyr Tydfil County Borough Council: The power of the courts to order parties to engage in dispute resolution

Peter Allchorne and Emma Fuller of DAC Beachcroft, look into the UK case of Churchill v Merthyr Tydfil County Borough Council, where the Court of Appeal ruled that courts can order parties to engage in alternative dispute resolution (ADR) processes, provided it does not impair their right to a judicial hearing and is proportionate. This decision opens the door for the courts to mandate ADR before trial, potentially leading to cost implications and further clarification on what constitutes adequate engagement with the process.

https://www.dacbeachcroft.com/en/What-we-think/Churchill-v-Merthyr-Tydfil-County-Borough-Council-The-power-of-the-courts-to-order-parties?utm_source=Vuture&utm_medium=Email&utm_campaign=06122023-Motor-PeterAllchorne

Overcoming Clichés in Mediation

Jamil Shaaban, Civil Mediator at Shaaban Mediations, suggests ways to help parties overcome impasses, such as when they refuse to take the lead in making the opening offer, when there's a diminution of trust between the parties, and when they refuse to show their cards.

https://mediate.com/overcoming-cliches-in-mediation-author

Overcoming impasse, NegotiationNic ScampionApril 30, 2023Back to all Resources

A Litigator’s Guide to Mediation Advocacy

Sheldon Stark, mediator and arbitrator based in Ann Arbor, MI, explains how mediation advocacy differs from traditional principles of "zealous advocacy", and suggest an approach to mediation advocacy designed to maximise the opportunity for resolution.

https://www.starkmediator.com/wp-content/uploads/sites/4/2022/12/A-Guide-to-Mediation-Advocacy.pdf

Mediation Advocacy, NegotiationNic ScampionJanuary 5, 2023Back to all Resources

Improve the Chances Your Mediation Will Be a Success

Steven Mehta, an LA mediator, offers some good advice as to how to succeed at mediation: let the other side pick the mediator; avoid arguing about who’s right; leave the litigators at home; and deal with complex issues last.

https://www.adrtimes.com/improve-the-chances-your-mediation-will-be-a-success/

Confusing Dispute Resolution Jargon

John Lande, Isidor Loeb Professor Emeritus at the University of Missouri, School of Law, explains that the concept of the BATNA is complicated; it is a preferred potential course of action, not a specific value, so we should not be too confident about its actual value. He offers some advice about how it might best be used.

https://www.adrtimes.com/confusing-dispute-resolution-jargon/

NegotiationNic ScampionOctober 31, 2022Back to all Resources

CEDR's Complete Guide To Commercial Property Mediation

It covers everything you need to know about mediating in this space, looking specifically at:

Commercial property mediators, Eve Pienaar and Stephen Barker, provide a guide to mediating in the commercial property space, looking at the mediation process, challenges and case studies, who should attend, advice on preparation and negotiation strategy, and settlement considerations.

https://cedr.foleon.com/cedr/cedrs-complete-guide-to-commercial-property-mediation/?utm_campaign=Commercial%20Newsletter&utm_medium=email&_hsmi=221800795&_hsenc=p2ANqtz-8Fz5WHSe5HY_R1dpRK0obHds6UyWkK_ZtzsnNAFQ-1-MS6oZXmfCxun2GM_LlTtgcV8H_mOSk34H3Jw-FJ5fEq_nCHPmGaZJwLojXlUJR4x4XOUJU&utm_content=221800795&utm_source=hs_email

Zone of possible agreement (ZOPA)

Emily Holland of ADR Times explains the concept of a ZOPA (and BATNA and WATNA) and their importance in negotiation.

https://www.adrtimes.com/zone-of-possible-agreement-zopa/

NegotiationNic ScampionMay 25, 2022Back to all Resources

When a Little Power is a Dangerous Thing

The staff at Harvard Law School Program on Negotiation discuss a study in the journal Psychological Science showing the relationship between BATNAs and outcomes - a weak BATNA can act as a low anchor, leading to a worse result - and suggesting alternatives.

https://www.pon.harvard.edu/daily/salary-negotiations/when-a-little-power-is-a-dangerous-thing-nb/

Negotiation, Preparing for mediationNic ScampionApril 7, 2022Back to all Resources

Anchoring in Negotiation

ADR Times explains the concept of positional bargaining and contrasts it with principled negotiation.

https://www.adrtimes.com/anchoring-negotiation/

NegotiationNic ScampionFebruary 2, 2022Back to all Resources

Positional Bargaining Explained

ADR Times explains the concept of positional bargaining and contrasts it with principled negotiation.

https://www.adrtimes.com/positional-bargaining/

NegotiationNic ScampionFebruary 2, 2022Back to all Resources

Opening Offers in Negotiation

Chris Poole, JAMS, explains how to pitch an opening offer in a negotiation - and how not to.

https://www.mediate.com/articles/marshall-opening-offers.cfm

NegotiationNic ScampionNovember 30, 2021Back to all Resources

Using Questions for Enlightenment

Andre Oosthuizen, Cape Town based lawyer and mediator, discusses the value and art of asking questions in mediation.

https://www.mediate.com/articles/oosthuizen-questions-enlightenment.cfm

Six Ways to be a Better Mediation Advocate – Later Stages of a Mediation

An article from CEDR (Neil Goodrum) - a sequel to an earlier article on preparing and opening - lists six things skilled mediation advocates do in the early stages of a mediation.

https://www.cedr.com/six-ways-to-be-a-better-mediation-advocate-later-stages-of-a-mediation/

Negotiation, Succeeding at mediationNic ScampionAugust 24, 2021Back to all Resources

CEDR’s Complete Guide to Trusts, Wills and Probate Mediation

Trust, Wills and Probate Mediations are among the most challenging of cases. The intense mix of emotional, legal and financial issues can make achieving sustainable outcomes incredibly difficult.

To help lawyers who mediate in this sector, CEDR has put together a practitioner-led guide that offers practical advice on how to manage and prepare for your mediations.

https://indd.adobe.com/view/1d4785a1-87af-4ee6-b11e-0f34e65652c6

Five Reasons Mediations Fail - How to Avoid Them - CEDR

Dr Karl Mackie CBE, of CEDR, identifies the most prominent five reasons why mediations fail and how to avoid them.

https://www.cedr.com/five-reasons-mediations-fail-how-to-avoid-them/?utm_campaign=Commercial%20Newsletter&utm_medium=email&_hsmi=96962213&_hsenc=p2ANqtz-9VRNbTsl3NknJx3SgHD-OPhRhK1au9VOY8CKi5uqme5bn8GVMqseK53VHK06097pczcpMibGChXSfcjJ28qMuRxB7JZTgNr4xDdJYQU6KrdzGtdM8&utm_content=96962213&utm_source=hs_email

BATNAs and the Emotional Pains from “Positional Negotiation”

John Lande (University of Missouri School of Law) suggests alternatives to the use of BATNAs in negotiation and references and recommends texts on negotiation.

https://www.mediate.com/articles/lande-positional.cfm

NegotiationNic ScampionJuly 31, 2020Back to all Resources

How to Manage Final Offers in Mediation

An article from CEDR (Nick Pearson) considers final offers: what they mean; how they should be made; how to deal with them.

https://www.cedr.com/how-to-manage-final-offers-in-mediation/

Overcoming impasse, NegotiationNic ScampionJuly 24, 2020Back to all Resources