With Super Bowl LVI less than two weeks away, allow me to share a bit of football trivia with you. Prior to 1912, there was no such thing as an end zone in what is referred to as “American” football. The field of play extended from one goal line to the other and a player was required to cross the opponent’s goal line while physically carrying the football in order to be credited with a touchdown.

When the forward pass was first introduced in 1906, the ball had to be thrown and caught within the existing field of play in order to be advanced. Stepping beyond the goal line was “out of bounds.” Naturally, this limited the utility of the forward pass, ultimately leading to the creation of the end zone.

At the time, the actual field of play was 110 yards. However, most college stadiums lacked the space needed to physically add an end zone at each end. As a result, the dimensions of the playing field were reduced to 100 yards. And the rest, as they say, is history!

Like football, the mediation process also has an “end zone,” albeit one that is purely metaphysical. Referred to in the negotiating literature as the Zone of Possible Agreement (ZOPA), the negotiating “end zone” is that range of values between “X” at one end and “Y” at the other, within which both sides might reasonably be willing to reach a resolution. Unless and until the parties are willing to negotiate within a realistic ZOPA, resolution is essentially impossible.

[For those of you familiar with my Baseball Mediation™ process, ascertaining the ZOPA or realistic settlement range is precisely what I try to do. After analyzing the information provided to me before and at the outset of the mediation, I do my best to identify what I refer to as the Projected Minimum and Projected Maximum of a realistic settlement range — i.e., the “end zone.” Anything less than or greater than the Projected Minimum and Projected Maximum are considered by me to be “outside” the realistic playing field. Next, I calculate the midpoint or, in football vernacular, the 50 yard line, which I later use as an impasse-breaking mechanism if both sides stipulate they would like to engage in Baseball Mediation. Perhaps I should have called the process “Football Mediation” 😂 ]

Reaching the “end zone” in mediation isn’t always that easy. Just as in football, each side battles to gain better field position, often without making much forward progress. One side may start with a demand or offer at their own “goal” line. Not surprisingly, the strategy for defending against such a tactic frequently results in a response that is at the opposite end of the playing field, polarizing the parties’ positions and leading them to become frustrated and less cooperative with one another.

When faced with a dispute in which the parties’ posturing threatens to block further negotiations, mediators may be required to call a “time out” and serve as dual head coach, huddling separately with each side to propose adjustments to their respective game plans.

To help the parties reach the elusive “end zone,” I often suggest that one side consider proposing a reasonable “bracket” to the other side, even in the earliest stages of the negotiations. In my opinion, all communication has intrinsic value and any message that sends a signal as to what one party considers to be the reasonable playing field can prove to be invaluable.

Sometimes, I may suggest “blind” negotiations in which each side communicates their demands and offers to me with the understanding that I will not share those demands and offers with the other side until I am confident both sides are within a realistic “end zone.”

Still other times, I may suggest that both sides share their respective “bottom lines” with me so I can evaluate whether there is any prospect for a resolution.

Whether playing in the Super Bowl or engaging in settlement negotiations, success depends upon an ability to reach 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