Know your opponent (KYO)

The better informed a party is on the way into a mediation, not just about the merits of a case, but about his or her opponent, the more likely it is that a good deal, as opposed to one that is just about acceptable, will be secured.

This does not mean simply obtaining the latest accounts, market intelligence etc on a party, as important as that might be.  But rather gaining an insight into the individuals who will be representing that party i.e. the people who will need to be persuaded to think again, think the unthinkable and persuaded of the value of settlement terms proposed. Is their background engineering or finance (could be useful in determining the way to pitch dialogue or offers)? Have they recently changed jobs (this may not be a problem that has arisen on their watch – are they in ‘clean-up’ mode or self-preservation)? Are they managing any other disputes despite having a pretty big ‘day job’  (there may be a premium/discount to be secured simply down to a desire to have one less distraction)?  Moreover, the more that one knows about the individuals on the other side, the greater the scope for rapport building.  “I see you used to work at…..  Funnily enough, I did too.  Did you know so and so….” .  However transparent and yes, even cynical, attempts at building bridges may appear, positive overtures are rarely received negatively!

So, do your KYO checks before you mediate and get the best out of the mediation day.