[The following is a revised, updated and retitled version of the Mach 1, 2008 inaugural edition of Resolution Strategies]
As you ponder your next move during the mediation process, remember that every demand or offer you make will be analyzed by the opposing party and opposing counsel in an effort to deduce your negotiating strategy. Be mindful, therefore, to choose numbers that paint the picture you want the other side to see.
An unreasonable opening demand or offer may paint a picture that inadvertently serves to impede rather than promote further negotiations. Similarly, a move during negotiations which is too substantial may paint a picture that unknowingly alters the expectations of the other side and, as a result, changes the dynamics of the negotiating process. Conversely, a move that is too small may paint a picture that, though perhaps not your intention, brings negotiations to a grinding halt.
All negotiations start, in effect, with a blank canvas. With your very first stroke, consider helping the other side to envision the rough outlines of a potential resolution by choosing a number that realistically frames the dispute. With your next few strokes, you may want to capture the other side’s attention and interest by choosing numbers that are attractive and appealing — numbers that are specifically designed to draw the two sides a bit closer together, without creating any false expectations. If you sense that the other side is still having trouble visualizing a range within which settlement might be possible, you may want your next few numbers to be a bit more bold and revealing. If the other side begins to grow frustrated and impatient, choose numbers that clearly signal a willingness to continue negotiating. Finally, when you want the other side to see — several moves in advance — how the final picture is likely to look, try using numerical patterns that are transparent and predictable.
Even when you become convinced that settlement is not possible, continue choosing numbers that paint the picture you want the other side to see. When you paint a clear picture from beginning to end, you increase the odds that your client will — at the very least — learn the other side’s bottom line. That, in turn, will enable your client to make a more informed decision as to whether it is truly better to proceed to trial. The ability to insure that your client makes the most informed decision possible is an art your client will appreciate.
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