Fourteen years ago, while helping my son — the future drummer — study for an upcoming exam in his Algebra II class, it suddenly struck me that a simple algebraic equation might be a clever way to illustrate and emphasize the value of “why” when you are engaged in the negotiating process.
Stepping outside the world of litigated disputes for a moment might better demonstrate the point. Imagine that you’ve been standing in line at the pharmacy, waiting patiently to pick up a prescription. Suddenly, just as you reach the front of the line, a teenage boy with a pony tail and the first traces of a goatee — wearing baggy jeans that reveal his boxers — rushes up to you and asks to cut in line. More likely than not, you would tell him to go to the back of the line and wait like everyone else.
But what if that the same teenager politely asks whether you would mind if he cuts in front of you, apologetically explaining that his mother instructed him to run into the store to pick up a prescription for his baby sister, who was suffering from a severe asthma attack in the car? Although the resulting delay to your own plans will be the same in either scenario, I suspect you would be more likely to accommodate the teenager’s request in the latter situation than the former.
Providing an explanation when making a demand or offer during settlement negotiations can be equally beneficial. For example, an opening demand of $200,000 may evoke a different response than an opening demand of $199,332 accompanied by an explanation that plaintiff incurred medical specials — after Howell reductions — in the amount of $23,456, plus loss of earnings of $29,876, and that general damages have been calculated at $100 a day for 4 years, for a total of $146,000. Though both demands may be rejected, the latter may establish a different and better framework for further negotiations.
Similarly, an opening offer of $25,000 transmitted without any explanation in response to such an opening demand might prove to be less effective than transmitting that same offer accompanied by recent jury verdicts showing a six-figure verdict is highly unlikely, together with data indicating juries in cases with similar fact patterns have assigned as much as 75% comparative fault to the plaintiff.
In a mediation that I conducted just last week, defendant resisted the temptation to start with an insulting opening offer in response to the opening demand in a trip and fall case where liability was strongly contested. Instead, defendant asked me to extend an opening offer of the medical specials, together with a detailed explanation regarding defendant’s position on liability, comparative fault, future medical specials and non-economic damages.
Appreciating both the opening offer and the explanation, plaintiff reduced the demand substantially, which led defendant to almost double its opening offer. With trust and cooperation having been established from the outset, the matter was resolved in just a few more moves.
In sum, explaining “why” will generally make “x” appear to be more reasonable, which, in turn, may temper the other side’s reaction and response to “x” — integral parts of any formula for successfully resolving disputes.
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