HOCUS FOCUS

A visit to the Magic Castle five years ago led me to realize that magicians and mediators share something in common — in order to be effective, both must be skilled at redirecting one’s focus.

Plaintiffs and defendants generally arrive at mediation with a singular — and identical — focus, i.e., to obtain the best possible outcome. Of course, their definitions of “best possible outcome” are usually antithetical to one another, and therein lies the rub.

Determined to achieve the best possible outcome, both may end up adopting a “competitive” negotiating strategy, which — paradoxically — may make it more difficult to reach a resolution. Plaintiff may start with a demand deemed “too high,” resulting in an offer deemed “too low,” triggering a chain reaction where each side moves at a glacial pace or, in a worst case scenario, questions the other side’s good faith, declares the mediation a waste and threatens to leave.

The problem with a “competitive” negotiating strategy is that it creates the illusion that neither side is willing to compromise. And once the hope and promise of a potential compromise disappear, reestablishing trust and cooperation will require one side or the other to make a more substantial move — something both sides may be loathe to do for fear it will be seen as a sign of weakness, resulting in the loss of credibility and negotiating leverage.

When the parties seek to employ a “competitive” negotiating strategy, I strongly encourage them to consider the possible consequences and I suggest that they focus instead on their objective. Usually, plaintiff’s objective is to learn how much defendant may be willing to offer and defendant’s objective is to learn how little plaintiff may be willing to accept. If the parties redirect their focus, they are likely to realize that a “cooperative” negotiating strategy will better serve their interests.

Admittedly, a “cooperative” negotiating strategy requires each side to take greater risk by starting with a more reasonable demand/offer and then making bigger moves than might be comfortable. As the gap begins to close, however, the parties begin to see that settlement might be possible. Abracadabra! Pessimism vanishes right before their eyes and is replaced — seemingly conjured out of thin air — by optimism, leading to further cooperation and, hopefully, resolution.

Mediators may not be magicians, but occasionally we have something up our sleeve and every so often we find a way to pull a rabbit out of a hat. Sometimes, merely redirecting everyone’s focus is enough to do the trick.

As always, I would be pleased 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

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