Back in April, with opening day approaching, I took the opportunity to acknowledge the contributions of Major League Baseball to the dispute resolution process. With the start of the NFL and college seasons just around the corner, it seems only fitting to now use a football metaphor in discussing mediation.
In order for opposing parties to resolve any dispute through negotiation, they must first succeed in reaching the “end zone” – i.e., the zone or range of values between “X” at one end of the continuum and “Y” at the other within which both sides might be willing to enter into a settlement and end their dispute.
Reaching the “end zone” in mediation isn’t always that easy, however. Just as in football, each side battles to gain better field position, hoping to secure a more favorable outcome. To do so, one side may make a demand or offer which is viewed by the other side as being extreme and unreasonable. Not surprisingly, the strategy for defending against this tactic often results in a response that is equally extreme and unreasonable, polarizing the parties’ positions and leading the parties to become frustrated and less cooperative with one another, thereby threatening to bring negotiations to a grinding halt.
When faced with a dispute in which the parties’ posturing threatens to thwart further negotiations, the mediator is often required to call time out and serve as dual head coach, helping both sides adjust their game plans to reach the elusive “end zone.” To prevent the parties from giving up too soon, I will frequently attempt to elicit an acknowledgment from defendant – privately, of course – that he/she would be willing to pay “X’ if doing so would absolutely resolve the matter. Armed with such a concession, I then privately seek to elicit a similar acknowledgment from plaintiff that he/she would be willing to accept “Y” if offered.
If both parties privately acknowledge these concessions, I then suggest that each agree to move to those positions, thereby re-establishing cooperation and simultaneously establishing a new playing field with an “end zone” that is bracketed by “X’ on one side and “Y” on the other – an “end zone” which offers both sides the realistic hope of an acceptable compromise. When the parties agree to the suggestion, they usually find their way from “X” and “Y” to their mutual goal line: resolution.
Whether engaged in settlement negotiations or playing football, those who succeed are those who refuse to give up before reaching the end zone.
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
fjs@fjsmediation.com