Even though it’s been more than seven years, I remember the conversation as if it was yesterday. During the social hour that preceded the 2013 Santa Monica Bar Association Fall Dinner Program, several attorneys were singing the praises of an “app” that I’d never heard of, piquing my curiosity. After doing a bit of research, I decided to download Waze — “the world’s largest community-based traffic and navigation app.”
Utilizing information gathered in real-time from its dedicated user-base, Waze offered not only traditional navigation with voice-guidance and precise ETA’s, but also warnings about accidents, disabled vehicles, traffic jams, objects on the road, speed traps, weather conditions, lane closures and road construction — while simultaneously suggesting alternative routes to reduce travel time. Just type in your destination and Waze did the rest. Waze was so highly regarded that it was acquired that year by Google for more than $1 billion!
To me, Waze is not just a revolutionary app — it’s also an apt metaphor for the mediation process. After all, mediation is the means by which parties to a dispute navigate their way from completely different starting points hoping to arrive at the same destination. Absent reliable directions, however, one or more parties can easily take a wrong turn and find themselves hopelessly lost.
By virtue of our role as neutral intermediaries, mediators are the cartographers retained by the parties to help map out the route. Much like Waze gathers data from its dedicated user-base, mediators gather information from the parties throughout the mediation process. Ongoing real-time analysis of that information is the means by which mediators are able to identify which roads are more likely to lead to resolution, determine when its best to speed up/slow down, warn of obstacles that might prevent the parties from reaching their destination and suggest alternate routes.
Just as Waze is less useful as a mobile navigation app if users fail to input their destination, mediators have fewer means available to assess the viability of certain negotiating strategies when they don’t know where each party is heading, as shown by this example from an actual mediation:
In response to plaintiff’s opening demand of $295,000, counsel for defendant authorized me to present an opening offer of $150,000 — which was significantly more than I had been expecting. Before presenting the offer, I asked counsel for defendant whether he was comfortable telling me where he was hoping to end up. He responded that he had $170,000 in settlement authority.
Once counsel for defendant had shared his settlement authority with me, I naturally became concerned that plaintiff and his counsel might easily misinterpret an opening offer of $150,000, leading them to adjust their expectations — and their negotiating strategy — upwards. That, in turn, might lead to an impasse that could otherwise be averted.
By sharing his intended destination with me, counsel for defendant provided the means I needed to recognize that a different route might prove to be more effective. Following further discussions, counsel for defendant asked me to present an opening offer of $100,000 rather than $150,000.
Not surprisingly, the ensuing negotiations resulted in a resolution that was within reasonable proximity of defendant’s intended destination — a settlement the parties might not have reached absent the course correction.
When parties discover that they’re in the same general vicinity as one another, they’re usually able to reach a resolution; when they erroneously believe that they’re miles apart, impasse is more likely. Sharing your destination with your mediator can provide the means by which he or she is able to anticipate potential gridlock and devise alternative and more promising Waze ways to get you there.
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.
Floyd J. Siegal