Expert insights on the art of negotiation, mediation, and preventing disputes before they reach the courtroom.
Commercial disputes rarely begin in arbitration or court; they usually develop gradually through identifiable stages of tension and escalation. Understanding the lifecycle of conflict allows organisations to intervene earlier, control risk, and manage disputes more strategically.
When in-house counsel select a mediator for a commercial dispute, the default approach is to check credentials, confirm neutrality, and move on. This misses the question that determines outcome: does this mediator have the commercial experience and substantive depth to do more than manage dialogue, and can they manage decision-makers who are not in the room?
The first twenty minutes of a commercial negotiation are not relationship-building. They are diagnostic. Experienced negotiators use routine opening moves to test your preparation, urgency, alternatives, and process awareness. Most people miss this entirely. By the time the parties start discussing substance, the information asymmetry is already in place.
When the other side holds most of the formal power, the weaker party’s outcome is determined less by that asymmetry than by a small number of recurring, self-inflicted mistakes. Stronger counterparties rarely need to win the negotiation. They need the weaker side to lose ground unnecessarily, and most of the time it does.
Aggressive behaviour in commercial negotiations is routinely treated as an obstacle to be managed. In practice, it tends to be a signal worth reading. Understanding whether that pressure is reactive, strategic, or driven by something else entirely determines whether your response stabilises the negotiation or accelerates its breakdown. This article sets out a framework for making that distinction under pressure.
In high-stakes negotiations, the party with more leverage is not always the larger or more powerful one. Leverage is rarely where it appears to be, and it rarely stays where it starts. Understanding how it actually forms, and how it shifts, is what separates a well-prepared negotiator from one who mistakes position for advantage.