Joseph P. McMahon Jr.

Arbitration, Facilitation and Mediation 

 Home     Site Map     jpmcmahon@jpmcmahon.com
Sign up for email ADR updates

What eight factors indicate whether settlement discussions
have the best prospects for success?

Based on my experience, the eight factors listed below are good indicators of whether parties will be successful. By "successful" I mean not merely reaching a resolution but also: (a) being efficient and reaching the best possible solution; and, (b) increasing the parties' ability to deal with future conflicts. 

Under each of the eight headings, I have listed the sub-factors that may be indicators of "success."  I refer here to the factors that promote successful settlement processes, that should in turn promote successful settlement outcomes.

If the concepts needed to be reduced to down to two issues, those would be:
Positive attitude with adequate self reflection.
Commitment to "stay at the table."

The list below suggests success. For the indicators suggesting failure is likely, see settlement errors and barriers.

1.  Competent representation and advisors
      1.1.   Each representative/team is qualified and knowledgeable, and will "stay at the table" to get the job done.
      1.2.   All necessary parties are engaged in the process.
      1.3.   Representatives are well prepared, attend sessions and understand their role.
      1.4.   The Parties show similar and the necessary commitment and motivation.

2.   Focus on dialogue rather than merely debate
      2.1.   Representatives engage in dialogue (i.e., thinking together), not merely debate.

      2.2.  The Parties understand that the willingness to engage in dialogue does not demonstrate or suggest a lack of conviction.
      2.3.   Representatives speak to explain, listen to understand.
      2.4.   Parties expect to learn in the process, not merely confirm their prior viewpoint.
      2.5.   Representatives are appropriately candid and disclose their interests.
      2.6.   Representatives acknowledge and disclose uncertainty, rather than reluctantly conceding it.

3.   Flexibility and self reflection
      3.1.   Parties have realistic expectations, and revise their thinking as they learn through dialogue.
      3.2.   Parties show flexibility and can make and reciprocate reasonable concessions.
      3.3.   Parties balance among creativity, pragmatism and risk.
      3.4.   Representatives periodically ask themselves - “In what ways am I holding this process back?”

      3.5   Parties understand that losing an illusion is more important than finding the “truth.”

4.   Understand when to jointly problem solve, and when to negotiate
      4.1.   Representatives understand that the settlements involve both (a) collaborative work and (b) self interested negotiation.
      4.2   Representatives can move between problem solving and negotiation, and do not try to do both simultaneously.

5.   Negotiate to create value
      5.1.   Parties understand interest based bargaining, and how to use settlement "packages."
      5.2.   Parties take the time needed to find the best possible outcome.
      5.3.   So long as the needed value is found for their own interests, Parties assist the other Parties in finding value.

6.   Understand the importance and value of relationship
      6.1.   Parties know they should not only solve the current problem, but also where possible rebuild the working relationship.
      6.2   Representatives know that sound agreements are founded in the respectful work among the negotiators.

      6.3   Even when relationships are terminating, the negotiation of the termination is itself an important relationship.

7.   Suitable negotiating attitudes and context
      7.1.   The dispute is one that is suitable for a negotiated process.
      7.2.   Representatives professionally and respectfully engage in the settlement process.
      7.3.   Parties see integrity as the first priority and consistently act in good faith.
      7.4.   Egos (personal and institutional) are “left at the door.”

      7.5   Parties refrain from actions designed to mislead. 
      7.6.   Parties follow through on commitments in the process.
      7.7.   The process has sufficient transparency where key data is freely shared and explained.

      7.8   Representatives expect, and work through, the challenging phases of the negotiations -they "stay at the table."

8.   Results driven structure
      8.1.   The process is results driven and intended to bring about action.
      8.2.   Necessary data for decisions are available and thoughtfully assessed.
      8.3.   Representatives have sufficient time and patience for the task.
      8.4.   Parties are aware of, and work to avoid, decision errors.

Copyright ©2008 Joseph P McMahon Jr , all rights reserved