This document provides guidance on negotiating contracts and resolving disputes through mediation. It discusses that the goal of negotiation and mediation is reaching a binding agreement that is better than the current situation. The mediator's tools include allowing parties to vent their feelings, identifying interests rather than positions, brainstorming solutions, and reframing discussions. It also discusses exploring the best alternative to a negotiated agreement and considering other factors beyond just price or damages. The document advises taking negotiations step-by-step and focusing on the key economic terms first before finalizing all details.

1. The
mediator’s
perspective
How to negotiate contracts
Guy Tritton (gtritton@hogarthchambers.com)

2. Mediation and Negotiation
GOAL: A binding agreement
BACKGROUND
• Litigation or dispute (mediation)
• Potential opportunity (contract)
WHY?
Better than the status quo
MEDIATION: 90% success rate (on the
day and shortly thereafter)

3. The Mediator’s ToolBox
• Catharsis + Empathy
• BATNA
• WATNA
• Interests not positions
• Brainstorming
• Reframing
• Heads not Long Form
• Optimal solution

4. EMPATHY
What is the other side thinking?
Why would they be thinking like that?
Will they lose face if they have to
climb down?
What would I do in their position?
CATHARSIS
• Allow other side to vent
• Acknowledge their feelings without
validating their stated reasons

5. BUYER’S RANGE
ZONE OF POSSIBLE
AGREEMENT
SELLER’S RANGEBetter for Seller to Walk
Better for Buyer to Walk
LOW PRICE HIGH PRICE
BATNA: The price at which seller does not
make enough profit to make deal
worthwhile
BATNA: The price at which buyer
cannot make enough profit on resale
to make deal worthwhile
SELLER: OTHER FACTORS
• Likelihood of better
deal from others
• Deal gives me market
presence
• Deal gives me other
opportunities
BUYER: OTHER FACTORS
• Better deal from others?
• Does no deal foreclose
other deals?

6. DEFENDANT’S RANGE
ZONE OF POSSIBLE
AGREEMENT
CLAIMANT’S RANGEBetter for Claimant to Litigate
Better for Buyer to Litigate
• Net recoverable costs
(+damages) if I win
• Net recoverable costs if I lose
• Chance of success
• Management time spent on
litigation – foregone
opportunities
• Net recoverable costs if I
win
• Net payout
(costs+damages) if I lose
• Chance of success
• Management time spent
on litigation – foregone
opportunities
LITIGATION: MEDIATION

9. • JANE I need 75% of assets as I will be looking after the
2 children
• JOHN You are just using that as a ploy for more
money. You will just spend it on yourself
REFRAME
• JOHN You want your children to grow up and be
provided for?
• JANE Leaving aside the children, fair for you and John
to have the same amount?
• JOHN If 25% goes each to the 2 children, then you are
both getting the same 25%. Sounds fair?
• JANE I assume you have no problem in transparency
as to what is spent on children (not John wants to see
what you are spending – implicit accusations)
INTERESTS
Both – children’s needs
Fairness between husband and wife
John – misuse of money he gives to Jane
REFRAMING

10. Brainstorming
• Answers which meet
parties’
interests/concerns
• Can you think of a
way to solve my
concerns/cater for my
interests?
• Non-judgmental

11. Don’t try and
agree everything
at once
• Don’t fall out over the small
print
• Keep the lawyers at bay
• Binding Heads with good faith
negotiations for Long Form
• Economic vs legal terms
• Law of implied terms may “fill
in” gaps.
• Funnel to Long Form
• One step at a time

12. Improving
the Deal
• Can I improve
the deal which I
have in the bag?
• Have we
exhausted all
avenues of
cooperation?

13. How to negotiate contracts
Guy Tritton (gtritton@hogarthchambers.com)