Make Sure the Mediated Deal is Durable
Get the Mediated Agreement in Writing
What Are Typical Rates and Fees for Mediators?

Don’t Nibble at the Mediated Deal

Nibbling is a negotiation tactic that many mediation “experts” recommend as a means to get a bigger slice of the pie just as the deal is closing. Although nibbling can be an effective technique for one party to get more of what he wants, it can also undermine progress and derail an otherwise successful mediation.

Here are a couple of examples of nibbling: “Oh, just one more thing. It’s not much really. Could you pay that $100,000 over five years?” Or, as the deal points are being written up: “I’m fine with all this as I said an hour ago, but because your reluctance to close the deal yesterday required us to continue the mediation today, you should pay today’s mediation fees.”

In the way a rabbit nibbles at a lettuce leaf with small bites, so a negotiator nibbles at a done deal to have just one more bite of that leaf, and then another, and another one after that.

Those who recommend this style of play believe that the party being asked to give up a small additional item even after the parties have reached agreement will say “yes” because saying “no” seems miserly or because the party is exhausted and unwilling to fight over one last request that doesn’t require him to give up very much.

What those negotiation experts don’t seem to understand is face, particularly as it relates to buyer’s remorse. Many mediators have seen deals involving tens of millions of dollars blow up over a few thousand bucks while the parties are inking the agreement’s deal points.

Here are just a few reasons why nibbling is a bad idea:

  • Nibbling undermines what little trust the mediator has helped the parties develop with each other during the course of the mediation. That last-minute nibble comes across as dishonest and manipulative.

  • Nibbling heightens buyer’s remorse in parties who are already reluctant to accept the deal.

  • The small request is almost always too insignificant to risk having it blow up a hard-won deal.

  • The bad feeling nibbling creates may carry over into small acts of sabotage as the time comes for the parties to perform. The party who’s been nibbled almost always seeks to save face by getting back at her bargaining partner for the humiliating final punch after the bell has rung on the last round of negotiations.

Discourage nibbling for all these reasons. By the time you’re closing the deal, the parties have almost always come to see you as a trusted neutral authority. They respect you and the experience you bring to the table.

Use that social capital to discourage nibbling. You can call the parties to their higher angels, talk to them about the pragmatics of future performance, or lightly shame them by expressing your disapproval. By the time the parties are ready to write up the deal, you’ll know which of these techniques works best with the particular parties you’re dealing with.

Don’t confuse nibbling with instances when one party legitimately realizes that the agreement is missing a crucial element and asks to reopen negotiations. Clients may find inspiration in the waning moments of a mediation that transform a good agreement into a brilliant one.

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