Mediation Tips
Tactics used by parties in negotiation/mediation

A large part of mediation is negotiation (although negotiation in no way encompasses mediation). As a result, it behooves mediators to know about negotiation in order to use it to your – and thus the parties’ – advantage. As a good mediator knows, parties in a mediation will generally hide their interests behind positions, using certain tactics to allow the power to shift in their direction. Five common tactics used are the threat, the stall, the party initiated caucus, feign inflexibility, and the flinch.

• The threat is an "or else" proposition. A party that uses a threat will try to elicit a certain reaction in the opposing party by threatening a certain action on his/her part (for example, refusing to take part in the mediation). Threats are generally vague to allow for the party to not carry through, although if the threat turns into an action it can end a mediation.
• The stall uses time pressure to lessen the power of the other party. If the interests of one party are time dependant (needing to leave an apartment by a certain date in order to move somewhere else), the other party may waste-time, call for breaks, not focus on the real issue, in the hopes that by using up the time the first party may make larger concessions.
• A party-initiated caucus is a team tactic used when there is more than one individual in a party. After one member of the group offers a concession another member will call a team caucus implying the member made an error. This tactic is intended to add value to the concession which later could be traded for one of value to the team.
• One will feign inflexibility to test the resolve of the other side. One party will refuse to make a concession (perhaps claiming he or her does not have the authority to make the decision) in order to learn about the other party (how inflexible he or she is, how important a concession is to them, etc.). The point of this to shift the balance of power to the first party by increasing his or her knowledge of the other party’s stance.
• The flinch is a nonverbal indicator of pain or surprise. Depending on one party’s stance/position, the other party might flinch to give the impression that what the first party is asking is too much. Examples of flinches include groaning and displays of pain as well as expressions of shock or frustration.

Be aware of these strategies in mediation, because even though it is not technically a negotiation, parties may still make use of these tactics. In some cases, their use may even be unintentional as it has just become a part of how they deal with the other party over time and as a result they have stopped noticing it. Strategies a mediator can use to combat these tactics will be put up in one to two weeks.