“What is the virtue of a proportional response? Why is it good?”

President Josiah Bartlet, The West Wing, Episode 3

As anyone who’s glanced at my Judicate West profile knows, I’m a die-hard fan of The West Wing. Years ago, my wife gave me the entire series on DVD as a birthday gift and I’ve lost count of the number of times that I’ve watched all 156 episodes — in order! With every viewing of every episode, I tend to find something new that resonates with me as a mediator.

Two weeks ago, I watched Episode 3 — titled “A Proportional Response” — for the umpteenth time. The storyline focuses primarily on President Bartlet, who is facing his first international crisis after a military transport plane — carrying medical and military personnel — is shot down over Syria. Among the victims is President Bartlet’s personal physician — a brand-new father — and the President is intent on avenging his death by retaliating swiftly and decisively.

Meeting in the Situation Room with his National Security team, President Bartlet is presented with three potential retaliatory strike options by Admiral Fitzwallace, Chairman of the Joint Chiefs of Staff. When Fitzwallace describes the scenarios as “meeting the obligations of a proportional response,” the President, visibly angry, questions the virtue of a proportional response and instructs his team to prepare a “disproportional” response scenario.

When the National Security team reconvenes to discuss the new scenario, Admiral Fitzwallace pointedly reminds President Bartlet that “this strike would be seen both at home and abroad as a staggering overreaction by a first time Commander-in-Chief,” noting that “a proportional response doesn’t empty the options box for the future the way an all out assault would.”

What is it about this particular episode that so resonates with me as a mediator?

During far too many mediations, one or both parties have chosen the disproportional response, determined to send “a message” to the other side without regard for the unintended consequences of their own overreaction. The disproportional response is seldom necessary or effective.

If the ultimate objective is resolution, a proportional response is almost always a preferable option. In fact, responding with what is LITERALLY “a proportional response” — i.e., one that maintains a constant ratio to the other side’s demands/offers — can be a particularly effective strategy.

Consider the following hypothetical negotiation:

Plaintiff presents an opening demand of $450,000. Having only $100,000 in settlement authority, defendant responds with an opening offer of $30,000.

After doing some quick math, plaintiff decides to reduce the demand — every time — by twice the amount of defendant’s previous move. Accordingly, in response to the opening offer of $30,000, plaintiff reduces the opening demand by $60,000 — i.e., from $450,000 to $390,000.

Defendant counters by increasing the offer from $30,000 to $45,000, an increase of $15,000. Committed to the strategy, plaintiff reduces the demand by another $30,000 — to $360,000.

Frustrated, defendant taps on the brakes and counters with $55,000, an increase of only $10,000. True to form, plaintiff reduces the demand another $20,000 — to $340,000.

Exasperated, defendant counters with an offer of $60,000, this time an increase of only $5,000. Maintaining the strict 2:1 ratio, plaintiff reduces the demand by $10,000 — to $330,000.

Suddenly, defendant realizes that further slowing the pace of negotiations cannot alter the outcome. Unless and until defendant proposes a bracket or draws a line in the sand, all roads will inexorably lead to the exact same destination — $150,000 — assuming plaintiff maintains the same 2:1 ratio.

Whether employed by plaintiff or defendant, the virtue of “a proportional response” is that it sends consistent and unambiguous signals about a party’s intent without causing any collateral damage. And whether it be in mediation or the pursuit of world peace, a negotiating strategy that minimizes collateral damage is infinitely better than a negotiating strategy that does not.

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