The negotiation has ground to a halt. The parties have been at it all day and they are frustrated that there remains a big distance between them. The negotiations have proceeded in a traditional incremental way. Plaintiff’s last number is over $1,000,000 and the defendant is stuck at $100,000. At the rate things are going, it would take days to bring them into a zone of agreement. Again, this is an opportunity for the mediator to strut her stuff. Possible techniques to break the logjam include a consideration of ranges. For example, the mediator might suggest the following: Would you, defendant, settle the case in the low six figures meaning between $100,000 and $300,000 if the plaintiff would accept a number in the high 6 figures, $700,000 to $900,000?
If the parties do not like the mediator’s numbers, then the discussion turns to what numbers they would consider. This is an invaluable discussion from the mediator’s perspective. It gives the mediator information about where the parties are willing to settle and provides a means to determine whether and at what ultimate figure the case can settle. If the parties agree to the suggested range, the mediation has taken a big step forward toward settlement and compromise can ultimately be reached.
Another common technique is the use of brackets. Here, the mediator raises the use of brackets with the parties in caucus by saying, “if I can get a party to X will you go to Y.” Introducing the brackets technique also prompts a useful discussion for the mediator about about the parties ultimate settlement positions. A tangent on the brackets technique can be used if neither party wants to own the bracket. If the numbers are acceptable, but one or both parties do not want the other to perceive that the number is theirs, the mediator can propose the bracket as a mediator’s suggestion on moving the negotiations forward. I have used both of these bracket techniques as a means to successfully break an impasse.
More to come.
Bruce A. Friedman is a mediator and arbitrator with a national practice. For more information, contact him at ADR Services.