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Mediating and Negotiating Abroad: International Competitions

My experience as a competitor in IMSG-2021

We had been told as the fresher inductees of the Moot Court Society of CLC, DU that there are two signs of success in your first year as a mooter
  1. You win an external competition. And/or
  2. A senior asks you to be on his/her team.

So quite naturally when my senior called me to tell me that I was one of the two first years he wanted to bring onto his team for an International Mediation Competition, I think I screamed a little internally.

Competitions that fall under the category of Alternate Dispute Resolution were already attractive to me, they require no memorial submission, no research of law, and no oral arguments. Negotiations and Mediations are advertised as conversations, you receive a problem and a side that you would be representing, you make a case with the General Information for a few days, and on the day of the competition one receives the Confidential Information.

It is our job as the Counsels to utilize our Confidential Information to push for things our client might need. This information may be confidential but it may also be revealed if it helps push an offer or a solution. The goal is that at the end of the session, you should have spoken to the opposing counsels, understood their interests in the situation, communicated your interests, and come to a solution. This sounded simple enough, well at least to me when I had just begun my preparation for ADR competitions.

In my preparation for negotiations, I did what any sincere person would, research on YouTube. I looked at the body language of the people conversing, the types of statements that were being used on the table, and the types of solutions that were generally suggested. I even read "Getting to Yes" by Roger Fisher and William Ury. I was armed with the most eloquent sounding statements and a concept of what I needed to do.

I decided to go for a National Negotiation Competition for which I had qualified an internal competition. Feeling chuffed about the win in the internals, I went in very confidently, and …didn't qualify even the preliminary rounds of two competitions back-to-back. I was quite shocked because I had used things like "let us come to an amicable solution" and asked "why questions", but to my surprise that wasn't enough. My first sign of success was still not showing and I was getting nervous about my career as a mooter.

International Mediation Competition, Singapore

The offer for the International Mediation competition came after the two failures, so, humbled and yet somewhat relieved I started preparing with the other three members on the team. International Mediation Competition Singapore (or IMSG-2021, last year) has so far been organized by Singapore International Mediation Institute. It is a Tier-1 competition that anyone who has done any ADR knows about.

They have five rounds spread over two weekends, with workshops and consultations with luminaries in between the rounds. The problems range from commercial disputes to Medical Negligence or disputes regarding Intellectual Property Rights. Like a lot of experiences, COVID-19 took away our offline experience of Singapore and we hopped on Zoom from our homes for it. Since we had four members on our team, and in one round there could only be two counsels, we divided the rounds amongst ourselves in a way where all of us got to do three rounds with our teammates either as counsel or as a mediator.

Mediation in itself differs from Negotiation because of the presence of the neutral third party who is generally supposed to steer the conversation towards a solution and prevent any deadlocks by asking the right questions.

In October came the competition, we were as ready as we could be, but no amount of preparation could have removed the jitters about going against foreign teams. We are often told by people about the difference in the negotiating styles in different countries, yet as a student, it is not only the style that intimidates you but also the language, the accents, the fluency of the opposing counsels.

The Scripted Failure
My first round was against a team from the United States, I had told myself that I have watched enough sitcoms and shows to catch on to what they would be saying, I "shouldn't" need subtitles. The students were almost 5-10 years older than us, pursuing their Masters in Negotiation itself. The problem was a logistical issue regarding the delivery of some goods. My teammate and I came in, with our scripts prepared which was armed with words like synergy and amicability.

As is the structure of a Mediation, opening statements are given by all the parties present right before a joint session begins. We were to go second, as the US team began speaking, they addressed everything! That too in the friendliest of manners. I was flustered, we were prepared for resistance and they came in open. How are we to negotiate if they don't resist?! Ironic! I know, but that was our preparation, our questions, agenda points were meant to address all the facts that they had washed their hands off of in their opening statement itself.

We somehow made it through the round, but I learned my Lesson Number 1- "Scripts are the assists, not the main play." No matter how big the words are in your script, they will not assist you if you do not listen to the other side and participate in the conversation. The focus cannot be on getting through some speech.

The Purpose Of The Conversation
My second lesson came with my second face-off with a foreign team. The problem of this particular round was about a Medical Negligence case, this time, our script was not fixed, it anticipated the responses from the other side. Our script was to change according to the response from the other side. We asked questions, and for the first time in my life I understood the purpose of "why questions." The purpose of the joint session is to understand the other side, so our questions are supposed to pry out the needs, desires, and motivations of the other side.

We wanted to know what they had to say, to know what we had to do. The questions had a purpose. Our opposing counsels were Singaporean law students. They were prepared, with a PowerPoint presentation and had answers for all the questions we asked. They were cleverly driving the conversation without coming off as dominant.

Thus, came Lesson Number 2:
The questions have a purpose, and it is not to put the other side in a pickle". In my experience, the questions I would ask would be to put the person in an "answerable" situation, it was perhaps more of accusation and less of curiosity that drove the wording and purpose of my questions. That approach made us look adversarial, which also lead to deadlocks which are something you don't want in a negotiation. An amicable solution only comes out if you are amicably conversing, it may be easy to lose track of the purpose in a competitive environment but that is what gives you a winning edge.

The Team
My third and final round was the most nerve-racking. The problem was commercial, and having no background in economics or commerce I had sat the whole time of the preparation period googling the meaning of words such as Letter of Intent. I was unsure of myself the whole time, even to ask the correct why question or take assistance from the script, I needed to know what we were talking about. I spent time listening, I chipped in with a few questions to clarify and utilized my speech time to understand where they were coming from. I felt that this was it, we won't place well in the competition. But we did okay, and I identified Lesson Number 3- Know and trust your teammate.

Only when you know what your teammate is like in terms of responding to certain questions, and how much they know about certain topics, you will have trust in your partner during the negotiation. Your job is to negotiate with your teammate alongside you, trust them if they know a topic better than you, and allow them to know your strengths and weaknesses. Every individual has a different approach, it is not always a good cop/bad cop combo. Perhaps your teammate grasps on to offers better, while you have taken up the task of grasping the interests behind an offer. There is no winning with a team if only one of you is trying to drive the conversation, leaving the other teammate on their own.

Despite, the daunting experience, our team placed in the Bronze category in Mediation Advocacy and the Silver category in Mediation. We came out of the competition enriched and confident. It was like that one exam where you understood the concept while writing the paper. I recommend Negotiations and Mediation competitions to every law student, not only because it is an up-and-coming field but also because the skills you develop due to these interactions give you the ability to listen, the ability to think on your feet, and the ability to be more collaborative than confrontational. And everyone likes a collaborator!

Written By: Prakriti Bandhan

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