Mediation advocates for a settlement, not for any particular party or for any particular settlement -- that is counsel’s job. The negotiation stage is to approach that settlement. That approach can be of several types:

• Positional -- State your client’s position, dig in, stand your ground until the opponent comes around. (But they may call your bluff.) Or state your starting position, hear theirs, get and give concessions, each concession getting smaller and taking longer, try to get more than you give (perhaps by hiding what you really want), continue this "dance" until the settlement (compromise) is reached. Relationships will likely suffer.
• Principled -- Help your client agree on objective criteria or an objective process to reach agreement. Then follow the process and criteria to their conclusion, the agreement. This leads to a fair and "right" settlement, depersonalizes the exchange, preserves relationships, puts less pressure on all parties, and allows changes of position while "saving face".
• Interest-Based -- Work from parties’ interests (needs and wants) rather than from positions on issues. Be creative, invent options that satisfy needs of both parties. Solve the problem, don’t fight the opponent. Add value -- "Make the pie bigger before dividing it, or, through communication, discover that one side is apple and the other is peach -- just the kinds of pie the parties like, respectively." Relationships can survive, even improve or thrive.

Which negotiating approach should you use for your client?

Research (Axelrod) shows that best results come and exploitation is best avoided with these four principles:

1. Begin cooperatively (interest based)
2. Retaliate -- if the other party competes (positional)
3. Forgive -- go back to cooperation if the other party does so
4. Be clear -- let the other party know your approach.

• Use Positional if your client wants victory or revenge, if there is no trust possible, no neutral help, or if there is truly a single "zero-sum" issue (rare).
• Use Interest-based if the objective is resolution, if there can be some trust, if help is available, if the clients are creative, if there are multiple issues with some shared and some different interests and different priorities.

How can a Mediator be helpful in negotiations?

• General -- Let the mediator manage the agenda, and logistics; cause reciprocal exchange of information; provide neutral evaluation; absorb venting; give confidence to both sides through listening and validating, encouragement and support; lead around minefields and toward solutions; provide creative suggestions, problem-solving tools, structure, and "a system".
• Distributive -- Have the mediator explain and manage offers and counter-offers, push for concessions, reframe and soften positions and offers, be a sounding board for offers, and float trial-balloon hypothetical solutions to the other party.
• Principled -- Let the mediator suggest objective criteria and processes.
• Integrative -- Expect the mediator to ferret out interests and priorities; to brainstorm options, suggest creative proposals and trade-offs, and reframe; lead parties from positions, to interests, to questions that must be answered for resolution; see common interests in; and explore options.

Negotiation requires persuasion. Use these persuasive techniques:

• Use Information -- facts persuade, absence of facts causes doubt. Point to inconsistencies and projections from the past.
• Use Standards -- Cite accepted principles to prioritize, set constraints, and evaluate trade- offs.
• Use Behavior -- Use clear examples, humor (carefully), role reversal, silence.
• Focus on the future.
• Remind parties of their interdependence.
• Caucus with the mediator.