Where were the mediators in the Microsoft-Yahoo negotiations?

Where were the mediators in the Microsoft Yahoo negotiationsCollaborative lawyer and ADR professional David Hoffman, in an op-ed in the Christian Science Monitor, asks, “Microsoft and Yahoo: Where were the mediators?

David makes the strong case that mediation could have made all the difference, getting these digital technology giants to yes:

In the Microsoft-Yahoo negotiations, a mediator could have helped in several concrete ways.

First, since disagreements about the price of a company usually turn on financial predictions, mediators can help the parties structure creative options for mitigating their risks. Acquisition agreements often contain “earn-out” provisions that award benefits to the seller if the deal turns out to be a winner for the buyer. Without any investment in the outcome, mediators become “honest brokers” who can advance such ideas without the perception that they are seeking an advantage based on secret knowledge.

Second, a mediator can help the parties obtain neutral and independent opinions – as opposed to the potentially partisan opinions of the parties’ hired experts, lawyers, and investment bankers.

Third, a “mediator’s proposal” can test the waters of compromise. Let’s say the mediator asks each side to tell the mediator – on a confidential basis – whether they would accept a deal at $35 per share. This protocol means the mediator will report the answers only if both sides say “yes.” Thus, each side can take the risk of saying yes because the other side will never know unless they, too, have said yes.

Considering that mediation is “assisted negotiation“, it’s time for all of us who mediate to draw attention to the fact that mediation is not just for settling cases on their way to court or already in litigation — mediation makes sense whenever people want to negotiate better and smarter.

Read the rest of David’s commentary here.

2 responses to “Where were the mediators in the Microsoft-Yahoo negotiations?

  1. Diane, Thanks for the link to this article on the mediation of commercial contracts. I’ve mediated a commercial contract negotiation only once. It was really a tremendous experience for me as well as for the parties who were negotiating a partnership to run a chain of blank blanks (confidentiality you know). To tell you the truth, I felt as if I were serving more party interests more effectively in this role than I sometimes do helping people settle litigation, particularly when those cases are “pure money” disputes. The “big boys and girls” like Yahoo and Microsoft already have people on staff who specialize in negotiating deals like this, as well as attorneys. The benefit of a neutral, of course, is in her/his ability to use back channels, to dig into the parties’ deeper commercial interests (which can’t be revealed between competitors) and to find ways of harmonizing conflicting interests as well aligning those that are already mutually beneficial.

  2. Thanks for this link Diane.
    As an aspiring corporate/commercial lawyer keenly interested in mediation, I have always thought one of the greatest benefits of mediation (or better described in this context as “facilitated negotiation”) was the value that a neutral third could add to an agreement by focusing both parties on maximising their interests.
    I am considering taking a mediation accreditation course. However, discussing taking this career path with my superiors, most have advised that mediation belongs in the realm of ADR and litigation.
    I agree with my superiors to the extent that, at this stage, mediation is mostly recognised and valued (and therefore utlised) within an ADR context. However, I firmly believe that mediation/facilitated negotiation has much value to add in the corporate deal making process.
    I haven’t been able to find many resources on mediation in this latter context however, I feel this is an area with a great potential for growth.
    What are your thoughts on this?