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Mediation Negotiation: Want a Home run? First, Find the Ballpark!

October 27, 2016

The 2016 World Series* began this week!

(*World Series time always brings the overuse of common baseball terms (and clichés).

So, hold your caps* and indulge me:

The most frequent negotiation error* made by claimants in mediation is in their initial ‘demand’ for settlement.    This error invariably then causes every defendant to bobble their own play* with their initial offer of a “low-ball”*.    Any such foul* beginning, unless quickly cured, rarely allows either side*the final home run* of resolution (groan).

(OK, now that I have your attention…)

Mediator Secret:  Every mediator knows that to have any chance of success at mediation they must move the opposing parties initial negotiation positions close enough to each other to even allow the final efforts of reasoned final compromise.  And, such a goal must be achieved early!

Yet, no matter how much is spoken or written on claim negotiation,   See, i.e., Putting the ‘For Sale’ Price on your Horse”, January 31, 2011, “Consider the Real Estate Market When Planning Your Next Mediation Negotiation”, December 22,2010 or  “Mediation Negotiation:  One Reliable Method of Evaluating Personal Injury Damages”, December 18, 2013.  it is presently entirely too predictable that whether in a demand package, informal negotiation or in formal mediation, and without regard to the subject in dollar litigation, most claimant’s opening demand will invariably be excessive.  By excessive, I mean, that the opposition (and practically every other objective, thinking person on the planet) KNOWS that any alternative judicial outcome in the dispute will, likely and reasonably, be far less than their initial demand!

The predictable response to this excessive demand is that the opposition’s initial offer will thus invariably be totally and completely inadequate!   By inadequate, I mean every objective bystander equally knows such an initial response could not possibly be accepted by the claimant!

In short?  Too many mediating parties invariably begin their compromise negotiation efforts not even “in the ballpark” for any reasonable negotiation.  And, thus, it becomes the critical role of the mediator to find means to close-this-gap.

And, for any mediator to assist mediating parties to resolution with this all-too-common beginning , they first must find novel ways to get these always widely divergent initial mediation positions much closer to have any reasonable opportunity for a voluntary mutual agreement.

And, quickly, before the participants lost patience, hope and thus, interest.  See, “Is ‘Fear of Failure’ Ruining Your Negotiations?”, December 10, 2012.

This is not an easy task.  Many mediating participants resent being led.  See, “My Opinion:  Good Mediators Lead Best from the Back of the Room”, September 30, 2014  Thus, the better and clearer the explanation by the mediator for his/her suggestions, the easier the task.

However, until recently, I had no metaphor to help explain this initial and critical early gap-closing phenomena.  Or more importantly, why it was so critical to ultimate mediation negotiation success.

Recently, however, while preparing for a complex mediation, I found an article by the excellent Florida/Alabama mediator,  Rod Max, which likened this early closing-the-gap effort of the mediator to baseball.   ( I doubt Rod originated the baseball metaphor in mediation, but I certainly give him the credit for reminding me of this great “visual aid”.)

In short, and using the baseball metaphor, “you can never hit any home run of resolution in mediation without first getting all of the players at least to, and then, into the same ball park”.

In essence, before the negotiation game can even begin, much less have any chance of success, all of the players must agree just where their game will be played.

If a reasonable range of negotiation is not quickly found, often the parties’ exhaustion from first having to “build the park” simply prevents the rest of the final negotiation game to even get started!

Therefore, rather than having to first build a ballpark to play the negotiation game, why not FIRST choose a mutually acceptable park that all already know is a a fair one in which to begin your negotiations?.

If claimants have done their pretrial evaluation homework and know the true reasonable verdict range of their claim, they simply must accept that their opposition knows the same reasonable range as well.  Each side simply must respect, even without agreement, the experience and opinions of the opposing professionals.

For greater credibility and success, therefore, Claimants must consider NOT demanding the Taj Mahal for their ballpark, but rather instead, offering an already known and commonly accepted ballpark as the superior place to  begin to seek final negotiation success.

Of course, Defendants need not ALWAYS retaliate to a too-high demand with a too-low offer.  See, “Mediation Negotiation:  The Defense’s Opening Offer (assuming resolution is your goal)”, September 6, 2016.

And, for example bracketing, by one or both sides, and early can be an excellent means to move quickly to a more acceptable range of negotiation.  See, “Bracket Offers:  The Good, The Bad, The Ugly”, October 24, 2011.

Both sides have much to gain from closing the gap.  And, it can be achieved by the first, most reasonable party.  But old habits are hard to change and excessive demands have been the norm for far too long.

In return for this initial reasonableness from either side, and early, however, it then becomes highly likely that the remaining negotiations should also become much more meaningful, efficient and significant to compromise.  See, “The “Principled” Demand or Counter-Offer:  A Better Method of Negotiation”, June 7, 2016.

Whether instituted first by the Claimant or the Defendant, the earlier the mutually acceptable ballpark can found, however, the earlier your Mediator can better help you identify your bases, obtain the first good pitch and finally, allow the home run of resolution!

Simply beginning your negotiation correctly can become a win-win* for everyone.

Thanks, Rod.

Dan, from Ormond By the Sea, Florida.



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