Is Your Advocacy Helping or Hurting Your Negotiation?
Not long ago, I received one of the most unusual mediation briefs I’ve encountered.
At first, it appeared to be a typical brief for a half-day mediation, but a quick scan of the document stopped me in my tracks. The brief questioned why the mediation was taking place on a Friday afternoon. It questioned the mediator selection process. It highlighted that the parties remained significantly apart in their assessments and openly questioned whether “Marshall Schnapp” could bridge that gap in a single afternoon.
I remember reading it with a mixture of surprise, curiosity, and a little apprehension about how the day would unfold. In all my years mediating, I had never seen my name referenced in the body of a mediation brief. The opposing lawyer and their client, understandably, had a similar reaction. Before the mediation even began, they were already questioning whether meaningful negotiations were possible at all. The brief created so much uncertainty and apprehension that it left them skeptical that the mediation would accomplish much. And I’ll admit, I couldn’t help but share their concerns.
When the mediation session began, however, I was pleasantly surprised (and admittedly relieved); the lawyer who authored the brief delivered an opening statement that was professional, thoughtful, and solution-focused. The sarcasm and frustration dripping from the brief were nowhere to be found. Despite the expectations set by this unusual memo, counsel advocated strongly for their client and made it clear they were there to work. The mediation was challenging, but in the end, we were able to reach a full settlement.
What struck me afterward was how different the opening had been from the expectations created by the brief. The experience reinforced something I’ve seen time and time again in mediation: every communication before and during mediation sends a message. The brief sends a message. The opening sends a message. The numbers send a message. Even the way we negotiate sends a message. The question is whether those messages are helping or hurting the negotiation.
Credibility Matters
In mediation, parties are generally more willing to negotiate with people they view as credible. That doesn’t mean they agree with the other side’s position, nor does it mean that they necessarily like what they are hearing. It means they trust that the position being advanced is genuine, thoughtful, and grounded in the facts.
Credibility does more than strengthen arguments. It helps build rapport, creates trust, and makes it easier for parties to engage with one another, even when they strongly disagree. When positions are communicated consistently and thoughtfully, parties are more likely to view the other side as reasonable and predictable. They may not agree with the arguments being advanced, but they are more likely to believe they are dealing with someone who is negotiating in good faith – someone they can work with.
The opposite can also be true: when messages shift unexpectedly, when positions appear disconnected from prior discussions, or when advocacy feels more performative than substantive, trust can erode. Once that happens, parties often become more skeptical, more defensive, and less willing to engage. In many cases, the negotiation becomes harder not because of the merits of the dispute, but because confidence in the process has been weakened.
Consistency Builds Credibility
Credibility is not built through a single communication. It is built over the course of the entire mediation process. When the brief, the opening, the negotiation strategy, and the settlement positions all point in the same direction, parties are more likely to trust what they are hearing. They may not agree with the position being advanced, but they are more likely to believe it. That matters because credibility influences how parties respond. It affects whether they view the other side as reasonable, whether they take positions seriously, and whether they are willing to engage in difficult discussions. The opposite can also be true; when messages change dramatically or appear inconsistent, parties may begin to question the motives behind the message instead of focusing on reaching a resolution.
I’ve seen briefs that take a “scorched-earth” approach, only for the authoring party to arrive ready to negotiate seriously. I’ve also seen constructive briefs and openings followed by rigid negotiations. I’ve even seen situations where parties genuinely wanted to settle, but spent so much time signalling the opposite that the other side became skeptical before negotiations could truly begin.
Consistency also extends to the numbers communicated before a mediation is ever booked. One situation I’ve seen on several occasions involves settlement positions discussed during the scheduling process. Counsel may exchange numbers, discuss settlement ranges, or provide some indication of where their client is prepared to negotiate. Those discussions often help shape expectations about whether a mediation is worthwhile and whether meaningful negotiations are possible.
Sometimes, though, when the mediation begins, one party arrives at a dramatically different position than the one previously communicated. There may be legitimate reasons for that: new information may have emerged, or circumstances may have changed. When approached respectfully and fully explained, this might not be a problem at all. But in some cases, very little in terms of the facts of the case has actually changed; the evidence is largely the same, the issues are largely the same. Yet the opening position bears little resemblance to what was previously discussed. It seems that this is often intended as a strategic decision, or a negotiation tactic.
Unfortunately, this can create unnecessary barriers to progress.
The challenge with this approach is that parties rarely react to the numbers alone. They instead react to the change itself. In many cases, counsel and clients arrive at mediation having prepared around the positions previously communicated. Defence representatives may have obtained authority based on an anticipated negotiation range. Plaintiffs may have spent considerable time adjusting their expectations and preparing themselves for a particular conversation. When the opening position is dramatically different from what was previously discussed, it can create practical and psychological obstacles for both sides.
I’ve seen parties spend the first third of the session trying to get back to a range that existed before the mediation was even booked, significantly decreasing the chance of meaningful forward motion, especially during half-day mediations where time is already limited. I’ve seen counsel become frustrated because they feel they have been misled. In some cases, a party simply does not have the authority required to respond to the newly advanced position. On a few occasions, this has even resulted in a mediation ending very quickly because confidence in the process was lost before meaningful negotiations could begin.
The issue is rarely that a position has changed. Settlement positions evolve, and sometimes they should. The difficulty arises when that change comes as a surprise. If circumstances have shifted significantly, parties are often better served by communicating that change before the mediation begins and explaining the reasons behind it. Doing so allows the other side to prepare appropriately, manage expectations, obtain any additional authority that may be required, and arrive ready for meaningful negotiations. The most effective advocates are not necessarily the most aggressive or the most conciliatory; they are often the ones whose message remains clear, credible, and consistent throughout the entire mediation process. These negotiators understand that every communication either builds trust or erodes it.
Openings Shape Expectations
One place where credibility is often established or undermined early on is during the opening. An opening does more than communicate a position. It helps shape expectations for the day ahead. It can reinforce the themes established in the brief, or it can create a disconnect that leaves parties unsure of what to expect. When a brief sends one message and the opening sends another, parties often have to recalibrate and adapt in real time, without opportunity for review or reflection. That can make it more difficult to build rapport, establish trust, and create the momentum needed for productive negotiations.
Some openings focus almost exclusively on why the other side is blatantly “wrong”, giving the appearance that compromise or clarification is impossible. Others spend considerable time attacking relatively minor issues that are unlikely to move the negotiation forward. The most effective openings, in my experience, do something different. They explain why the party believes in its position, and thoughtfully address the key challenges raised by the other side. They acknowledge the difficult issues that exist. Most importantly, they help establish a foundation for productive negotiations.
That being said, strong openings are not necessarily also “soft” openings. They can certainly be firm, direct, and persuasive. But they also must be credible. When parties demonstrate that they understand both the strengths and weaknesses of the case, they often gain more influence, not less. A savvy negotiator can acknowledge positions without being adversarial; the other side may disagree with the conclusions being drawn, but they are more likely to view the opposing advocate as thoughtful, realistic, and worthy of engagement, rather than presenting the other side as the “bad guy”. The goal of an opening should not simply be to win the argument; it should be to advance the negotiation.
Four Questions Before Your Next Mediation
As you prepare for your next mediation, consider:
1. Does my brief accurately reflect my objectives for the mediation?
2. Does my opening build upon the themes in my brief?
3. If my position has changed, have I explained why?
4. Am I advocating in a way that builds credibility, trust, and influence?
A Final Thought
Strong advocacy will always matter. Credibility is often what gives advocacy its power. Every communication before and during mediation sends a message. When those messages are consistent, thoughtful, and aligned with your objectives, parties are more likely to engage, trust the process, and work toward resolution.
What message are you really sending?
ABOUT THE AUTHOR
Marshall Schnapp, BA, JD, LLM (ADR) has been resolving disputes for over 10 years as a mediator and has extensive experience in adjudication as well. Clients consistently recommend Marshall for his upbeat, tenacious attitude, and the skills he has honed helping resolve thousands of matters.
Get in touch with Marshall by email at marshall@schnappmediation.com or by telephone (647) 465-1886 today to set up a consultation, and see why he is the right mediator for your next file. For booking availability, please visit https://schnappmediation.com/marshalls-calendar/ or contact Lacey Day at lacey@schnappmediation.com call (647) 465-1886, or toll-free at 1-800-524-6967.
