Q: As a senior manager at my company, I have spent most of the past year trying to settle litigation with another company in our industry. We are about to go into our third mediation session in a few weeks. However, I have just been promoted to a job where I will have responsibility for a larger portfolio. It will include the litigation, but someone else (let’s call her Barbara) will now have day-to-day responsibility for it. Should I bring her to the mediation with me? Maybe she should go instead of me? Although my promotion has been announced and is well known in the marketplace, it won’t go into effect for two months.
A: The question of who goes to a mediation session is an important one to think through in advance. In this situation, there should be a strong presumption that you should go to the upcoming mediation session because your promotion is not yet in effect and you are still your company’s primary point person on the case. Unless some interpersonal problem might make you less effective than Barbara in front of the mediator (and your question suggests nothing of the sort), not going would send a negative signal to your counterpart and maybe to the mediator as well.
Having said that, it would be wise to bring Barbara with you to the mediation session (of course, with advance warning to the other side). This would not only help bring Barbara up to speed but also allow you to facilitate an introduction to the other side. Bringing Barbara also sends a signal that you don’t necessarily need to settle the litigation through mediation. This is important because the other side may be assuming that you will want to settle in order to leave Barbara with a clean slate. Bringing Barbara sends the message that you are perfectly happy passing this task along to her, which in turn increases the credibility of your commitments in the mediation itself.
Once Barbara is fully up to speed and you have transitioned into your new role, it would be equally wise to let Barbara continue the negotiations on her own. Barbara will gain leverage in the room by having to take any proposed resolution “upstairs” to you for approval—by saying, for example, “Even if I wanted to accept your offer, I could never sell that to my boss.” Effective negotiators often deliberately leave decision-making authority outside the room. For example, a few years ago, I was asked to advise a large public company on the settlement of litigation with a U.S. state. The question for the senior management team was who should attend settlement negotiations with the state’s attorney general (AG). The CEO wanted to go, but in the end the team agreed that the firm’s general counsel (GC) should go instead, to match the other side’s authority level and require approval from “upstairs.” After the GC and AG had made significant progress, the CEO went to meet with the governor to take their agreement over the finish line.
In your case, letting Barbara manage the negotiation on her own would be appropriate if the counterpart in the room does not have decision-making authority, either. But even if the other side can seal the deal, he or she would reasonably understand that you are the expert on the situation and will need to have a last look. That setup not only gives you assurance over the final outcome but also gives Barbara more leverage in the room.
Joseph Flom Professor of Law & Business, Harvard Law School
Douglas Weaver Professor of Business Law, Harvard Business School
Academic Editor, Negotiation Briefings
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