[The following is an updated version of the December 2008 edition of Resolution Strategies]

Of the nearly five dozen titles I’ve created for Resolution Strategies over the past five years, this one happens to be my personal favorite. Suffering from a severe case of writer’s block one evening back in November 2008, I decided to clear my head by helping my son prepare for an upcoming test in his Algebra II class. While reviewing the problems in his textbook, it suddenly struck me that using a simple algebraic equation in the title would be a rather clever way to illustrate and emphasize the value of “why” in the negotiating process.

Let me step outside the world of litigated disputes for a moment to better demonstrate the point. Imagine that you have been standing in line at the pharmacy, waiting patiently for ten minutes. Just as you’re nearing the front of the line, a teenage boy with long hair and the first traces of a goatee – wearing beltless jeans that reveal his boxers – rushes up to you and asks to cut in line. Although I could be wrong, I suspect you would tell him to wait in line like everyone else, perhaps using some choice four letter words in the process.

Now imagine that the same teenager politely asks to cut in line, apologetically explaining that his mother told him to run inside the store to pick up an emergency prescription for his baby sister, who was suffering from a severe asthma attack in the car. Although the resulting delay to your own plans will be the same in both scenarios, your immediate reaction is likely to be far more accommodating to the latter request than the former.

The value of an unsolicited “explanation” can apply with equal force in settlement negotiations. For example, an unexplained settlement demand of $200,000 is likely to evoke a different response than a settlement demand of $199,332 accompanied by an explanation that plaintiff incurred medical specials — after Howell reductions — in the amount of $23,456, plus loss of earnings of $29,876, and that you have calculated general damages at $100 a day for 4 years, totaling 146,000. The latter demand, even if rejected, is likely to establish a different and far better framework for further negotiations.

Similarly, an unexplained offer of $20,000 in response to a settlement demand of $199,332 may prove to be much less effective than an identical settlement offer accompanied by recent jury verdicts showing that a verdict in excess of $100,000 is unlikely and that plaintiff will probably be assigned at least 80% in comparative fault.

In sum, explaining “why” often serves to temper the reaction to “x” – usually making “x” more palatable – and that’s an integral part of any formula for successfully resolving disputes.

As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.

Best regards,

Floyd J. Siegal