Resolution Strategies | A Monthly E-Newsletter


MASTERS THESIS

As they do every April, the world’s greatest golfers gathered in Augusta, Georgia last month to compete in what many consider to be the sport’s most prestigious tournament — the Masters. Virtually every one of them had a seemingly flawless and effortless swing, and most were able to hit the ball at least 300 yards with their driver. Each was also proficient with the other woods, irons, wedges and putter in their bag.

So what distinguished the legendary Tiger Woods — who, at age 43, came from two strokes back to win his 5th Masters Tournament and his 15th major championship overall, 14 years after his last win at Augusta — from the rest of the field?  

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.  

DIFFICULTY ADJUSTING

On paper, the morning and afternoon mediations were barely distinguishable. Both were personal injury actions with clear liability and both appeared to have settlement values in the same range. Despite their similarities, the afternoon mediation resulted in a settlement, but the morning did not. Engaging in a bit of “post-mediation analysis,” it struck me that the reason the parties had reached a resolution in one but not the other was because counsel for plaintiff in the afternoon mediation had been willing to adjust his negotiating strategy to make defendant’s decision more difficult.  

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