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  • Writer's pictureCooper Shattuck

Principled Offers in Mediation

Updated: May 25, 2023

Negotiations can be challenging. As negotiators, we don’t make our jobs any easier by simply making monetary demands, offers, and counteroffers without anything more. The challenges associated with this form of “communication” are compounded when conveyed by a mediator through the caucus process. Even the non-verbal cues are removed when the parties negotiating are in different rooms. It can border on comical when a party to a mediation gives me a number to take to the other side and adds, “I want to send them a message.” Really? And you want to do that with a number? Wouldn’t using the English language be more convenient, more meaningful, and less likely to lead to misinterpretations? My response is often, “What is it that you would like to communicate?” And, if it makes sense, why don’t we just say it?

The problem illustrated by this example is inherent in all positional bargaining – making monetary offers without any justification, explanation, or support. Successful negotiators often use principled offers, demands, and counteroffers. These are offers that have some justification or explanation accompanying the monetary offer.

The idea of principled offers was addressed in the work done many years ago at the Harvard Program on Negotiation and is included by Roger Fisher, William Ury, and Bruce Patton in their bestselling and revolutionary book, Getting to Yes (Penguin, 3rd Edition, 2011).

Principled offers can be used to accomplish the six guidelines suggested by the authors of Getting to Yes to help the parties get past the impasse and reach a mutually beneficial solution.

  • Separate the people from the problem.

  • Focus on interests, not positions.

  • Manage emotions.

  • Express appreciation.

  • Put a positive spin on an offer; and,

  • Escape the cycle of action and reaction.

Positional bargaining (simply exchanging numbers without more) doesn’t work very well. It produces unwise outcomes because the parties are not focused on their interests.

In other words, when the parties are focused on “I win, you lose,” they miss opportunities to both get more of what they want. Positional negotiations are also inefficient. Misunderstandings of the message being communicated can waste a lot of time and energy in the negotiation. It can also endanger the relationship between the parties unnecessarily.

On the other hand, principled bargaining helps the parties invent multiple options looking for mutual gains before deciding what to do by illustrating what is important to each party.

Principled offers are better received which allows the negotiations to continue. A party doesn’t have to agree to the communicated principle to put its offers in those terms. Giving some basis for an offer doesn’t mean that you can’t change it in subsequent rounds. Ideally, if parties are honest, mutual gains can be accomplished.

Examples of the type of information which can be included with offers can include things that are important to one party but may not be so important to the other, such as the timing of payment, payments in installments, structured and variable payments, confidentiality, avoiding other claims, or avoiding bad publicity.

Parties loathe making principled offers. But they work. Mapping out some basis for your offers ahead of time can help. Even if there are no interests other than maximizing or minimizing the amount of money exchanged, having some basis for an offer is always helpful to the process. Try it.


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