Mediating Against the Clock
In “Mediating Against the Clock,” Melissa Kinzler examines the unique pressures of time-sensitive negotiations and the potential pitfalls of rushing to agreements. She emphasizes the importance of focusing on underlying interests, using objective standards, and streamlining communication to mitigate risks like positional bargaining and eroded trust. Kinzler provides practical strategies for balancing the need for efficiency with the pursuit of long-lasting, meaningful outcomes, even when time is limited.
Mediating against time constraints is a complex challenge, and the risks associated with rushing to agreement resonate with much of what I have experienced as a dispute resolution professional, be it in private practice, high-rise conference rooms, federal court, or international compounds. Tight deadlines can push parties to rush through the process, leaving little room for the creativity and depth that meaningful agreements require. Yet, with the right strategies, it is possible to balance the need for efficiency with the pursuit of thorough, lasting outcomes. In my experience as a commercial mediator, time-pressured negotiations require recalibrating priorities. These are not shortcuts, but rather a hyper-focused strategy to streamline communication and decision-making. While mediating against a clock necessitates efficiency, it also requires careful, strategic prioritization to avoid haphazardly undermining the quality of the negotiation. Let’s explore approaches I have found effective when the clock is ticking, the inherent risks of rushing, and a few tips to mitigate damage under the ticking clock.
Prioritizing Key Interests
When time is running short, progress hinges on focusing on interests, rather than positions. As the authors of Getting to Yes, Patton, Fisher and Ury will tell you, identifying underlying interests is crucial, even with tight deadlines. In my practice, prioritizing the key underlying issues at the outset saves time typically spent on surface-level positions, attitudes and egos. Targeting discussion of interests, not positions helps quickly align parties on sustainable solutions.
The BATNA/WATNA Reaffirmation
Pressure can cloud judgment, leading parties to overlook alternatives or settle for less advantageous outcomes. This is where reaffirming each party’s BATNA (Best Alternative to a Negotiated Agreement) and WATNA (Worst Alternative to a Negotiated Agreement) becomes critical. As Ury emphasizes, clarity about parties’ alternatives helps ensure no one is forced into a poor deal, nor leaves value on the table. This restores focus and allows parties to make informed decisions.
Streamlining Communication
In high-pressure situations, mediators may feel the need to address every concern or fear. While these emotions are important, time-sensitive negotiations often require streamlined communication. Drawing from Difficult Conversations (Heen and Stone), I encourage parties to focus on the primary issues and express their concerns directly. This avoids unnecessary detours and keeps the discussion on track, ensuring the most critical matters are addressed. Using a condensed communication structure avoids unnecessary detours and keeps everyone focused.
The Inherent Risks
While these strategies can aid in mediating against the clock, they also carry risks. Even when shortcuts are strategic, there’s always a danger of missing critical elements when time is tight.
Missed Underlying Interests
Mediating against the clock may cause both mediators and negotiators to rush and overlook deeper, more emotional concerns. Some would argue that if these underlying issues remain unaddressed, the resolution may be fragile and could lead to agreements that fall apart, or worse, create further future disputes. Under pressure, negotiators may settle for less favorable terms simply to meet the deadline, overlooking better options that could have been developed with more time.
Positional Bargaining
In my experience, one of the greatest casualties of rushed negotiations is the loss of creative problem-solving. The need for expediency often leads parties to revert to positional bargaining, where the focus is on making concessions rather than exploring innovative, win-win solutions. In my experience, rushing through a negotiation typically results in lesser outcomes, as there isn’t enough time to brainstorm and evaluate creative solutions. Instead, parties often resort to positional bargaining. Without adequate time, the parties are more likely to leave value on the table, and I have found that is not good for either party.
Erosion of Trust
Time pressure can also erode trust. As highlighted in Difficult Conversations, trust is built over time through understanding and careful communication. When negotiations are hurried, parties may feel misunderstood or dismissed, leading to mistrust. I have witnessed in my own practice that this is especially problematic in industries where long-term relationships are key, as eroded trust can have lasting consequences for future collaboration. Most industries have very small circles when you get to the key-players level; helping parties preserve the ability for future collaboration is the “long game” for those who hold top positions, decade after decade, in their industries.
Risk of Positional Bargaining
Tight deadlines often push parties into positional bargaining, where each side makes demands and concessions without considering underlying interests. However, under time pressure, negotiators may shorten their vision and develop blind spots. They may revert to a win-lose mindset, focus on short-term gains or merely avoid immediate losses. This reduces the likelihood of finding mutually beneficial solutions and increases the chances of creating unsustainable agreements that will not stand the test of time.
Risk Mitigation
Despite these challenges, time-pressured negotiations can still be productive if managed properly. Here are a few tips I have found effective in mitigating the risks:
Clarify Interests Early
By quickly identifying the crucial, underlying interests of each party, negotiators can focus their limited time on what truly matters.
Set Interim Deadlines
When possible, use deadlines to create momentum but schedule follow-up meetings or sessions to ensure that more complex issues are adequately addressed. This avoids incomplete agreements.
Use Objective Criteria
Objective criteria, such as legal precedents or industry standards, are invaluable in time-sensitive negotiations. Neutral benchmarks can efficiently resolve disputes and prevent subjective, emotionally charged arguments. For instance, using market rates or comparable contracts as objective criteria can break impasses quickly, resolve disputes efficiently and provide a neutral framework for quick decision-making, saving time.
A Balancing Act
Mediating against the clock is always a balancing act between efficiency and thoroughness. While time constraints can force decisions, they also carry the risk of missed opportunities, weakened relationships, and less favorable outcomes. However, by focusing on interests, using objective criteria, and streamlining communication, it is possible to navigate these constraints effectively. Often, the best solution is to strike a balance—use mediating against the clock to focus on what truly matters while scheduling follow-up sessions to address more complex issues later. Negotiating with the clock ticking may never be ideal, but with the right strategies, it can still lead to positive, productive outcomes.
Melissa Kinzler is a California Commercial Mediator specializing in intellect property, commercial banking, and business disputes.
