In the adversarial world of trial law, we are trained to view concessions as a sign of a weak hand. But as a commercial mediator, I often see cases settle not because of a brilliant legal argument, but because one party had the character to offer a “friendly, un-antagonistic” adjustment. This is the art of strategic conciliation.
While conciliation is the least complicated ADR method, it is often the most difficult to execute. It requires traits that are rare in the heat of litigation: mercy, humility, and compassion. Yet, for attorneys, understanding the difference between conciliation and negotiation is the key to avoiding the “appeasement pitfall.”
The “Alligator” Pitfall
In my years of practice, I’ve seen what your book describes as the “feeding babies to alligators” technique. This is the danger of conciliation without strategy—the idea that if you just feed the alligator enough, it will eventually stop trying to eat you. In reality, appeasing a bad-faith actor often only entices more aggression.
Strategic conciliation is different. Its goal is not to assign blame, but to resolve a problem through face-to-face discussion and unilateral concessions when they serve a broader business goal. If you are dealing with parties who must continue to work together—neighbors, long-term vendors, or family-owned businesses—conciliation is a tactical necessity, not a surrender.
Negotiation: The Sophisticated Sibling
While conciliation depends on custom and character, negotiation is the more sophisticated, regulated form of this interaction. Negotiation utilizes the professional services of lawyers to reach a settlement that is mutually satisfying—emotionally, economically, and legally. While conciliation attempts to mitigate conflict by one side “giving in,” negotiation seeks a balance where both sides feel they have secured a win.
Actionable Takeaway: The Negotiator’s Character Check
To become a more effective closer, cultivate these “conciliatory” habits:
- The Salutatory Gesture: Small, non-legal concessions (an apology for a delay, a gesture of respect) can lower the temperature enough to allow for a multi-million dollar negotiation to begin.
- Avoid the Appeasement Trap: Distinguish between a “crazy uncle” who needs a handshake and a bad-faith actor who views kindness as a target.
- Start Conciliatory: It is always easier to get angrier later than it is to “eat crow” after you’ve accused your opponent of every vile deed in the book.
Successful resolution requires more than a strong case; it requires a strategic temperament. If you’re looking for a mediator who can help your clients navigate the human and economic nuances of negotiation, let’s connect.
This blog is adapted from my unpublished manuscript on Alternative Dispute Resolution (ADR).
About the Author: Ken Strongman is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA, past president of The Mediation Society. and instructor at UC Law San Francisco.
© 2026-27 Ken Strongman. All Rights Reserved. Please do not copy or re-post without permission.
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