If you want to achieve optimal results in a mediation or other type of negotiation, you must be organized, know your case well and know as much as possible about your opponent’s case. The Negotiation Preparation Form below, adapted from a similar form in the excellent materials provided by Professor Charles B. Craver in his seminar entitled On Effective Legal Negotiation and Settlement given in New Jersey earlier this year, will help advocates and participants in organizing their preparation time.

Negotiation Preparation Form

1.    Determine the lowest result you would accept given your alternative(s) to a negotiated settlement, including transaction costs associated with both settlement and non-settlement:

2.    Determine the best result you might achieve on each item to be negotiated:

3.    Try to estimate the lowest result your opponent would accept given his/her alternative(s) to a negotiated settlement:

4.    Estimate the best result that your opponent might achieve on each item to be negotiated. Try to use the opponent’s value system when estimating the opponent’s potential results instead of using your own:

5.    Think through the factual and legal strengths and weaknesses of your case, and list each below. Prepare logical explanations supporting each strength and anticipate ways which you might minimize each weakness. Prepare a principled opening offer-try to begin as far from your actual objectives as you can while still being able to rationally defend your proposals:

6.    Think through the factual and legal strengths and weaknesses of your opponent’s case, and list each below. Try to prepare effective counter-arguments:

7.    What information do you plan to elicit from your opponent during the “information exchange” stage of the mediation in order to determine the opponent’s underlying needs, interests and objectives? List the questions that you anticipate using:

8.    What information are you willing to disclose and how do you intend to divulge it? How do you plan to prevent disclosure of sensitive information?:

9.    Describe your negotiation strategy. What is the agenda you will follow and what are the tactics you will use?  What is your anticipated concession pattern so that you will disclose only that information that you intend to disclose?:

10.    What is your prediction of your opponent’s negotiation strategy, and what counter-measures will you use to neutralize your opponent’s strengths and emphasize his/her weaknesses?:

11.    What negotiating techniques do you plan to use to advance your interests?:

12.    What negotiating techniques do you expect your opponent to use, and how do you plan to counter those actions?: