In a mediation process once the parties have identified the main terms of a positive outcome, they might need a larger time to put together the detailed terms of an agreement.
In the time required to write the agreement, possible change of mind may happen, or the parties may get stuck on the details.
Stepping back from the positive result discussed or making a relaunch in the attempt of obtaining more are common attitudes that find their reasons in the personal need to keep in some way the relationship still open or the need to perceive a winning conclusion or, else, to accomplish unexpressed needs.
The relaunching is a quite common attitude of the parties. One of them may find strategically workable asking a little more in this phase, taking advantage of the other party’s feeling of having reached a resolution and possibly inclined to concede little more not to re-open the discussion.
There are always margins to negotiate further but the trap is the wideness of the request.
The request may sound that “little too much” that makes the party who receives that request feel upset, provoking a sudden step back, not wishing to go further with the agreement.
Other aspects to give importance in the conclusion phase are designing workable details, acceptable from both parties. Important clauses to work to are time of fulfillment, consequences in case of no fulfilment, costs and taxation. Such final terms may result critical and bring back anxiety to the discussion.
A good way to keep the parties on the track is taking a record of the points agreed and repeating them several times, giving the parties the chance to go backwards to the analysis of controversial details, though they have moved to a conclusion phase.
Agreement found and “last-minute” relaunching
The relaunching may be a strategy but also something more subtle. It may be the result of one of the disputers’ identification of a need that the terms of the agreement discussed are not satisfying. An offer in discussion may sound so good that the party feels like cannot say “NO”. However, that offer may not satisfy a hidden need that for reasons of reputation or embarrassment was not expressed before.
Example of a real case
I personally mediated a case that as a background had several judicial trials pending between the litigants.
During the mediation process one of the litigants offered an exchange of properties with a gain of a double value for the other party in order to settle all their disputes.
The party who received the offer at first showed interest. However, although the offer sounded unrefusable, there where unexpressed reasons not to accept it.
Such reasons could be found in the need for such party of immediate cash and in the hidden wish not to close definitely and forever a long-lasting relationship.
Eventually the parties revised their agreement in a way to guarantee immediate money to the party in need and mutual commitment to abandon all the pending judicial disputes. It was a last-minute adaption, without which the outcome was impossible, no matter how convenient the initial proposed exchange of properties could be.
