As I was watching the NFL Wild Card, Divisional and Conference Championship games last month, it struck me that mediation and “the prevent defense” share the same DNA — the objective of both is to manage risk and prevent, to the greatest extent possible, a loss that might otherwise have been avoided.
For those not familiar with the term, “the prevent defense” is a defensive strategy used by a football team leading late in the game that wants to minimize the risk that the other team will be able to complete a long pass for a touchdown or significantly better field position.
Essentially, a team that employs “the prevent defense” assigns more of its defensive players to play “deep” in order to prevent a successful long pass, thereby theoretically forcing the offensive team to rely instead on runs and short passes, which will use up valuable time on the clock in the process.
Reduced to its underlying rationale, “the prevent defense” is a strategy wherein one side knowingly yields something of lesser value hoping to prevent the risk of a more significant loss — a definition that can readily be employed to define the negotiation process in mediation, as well.
In mediation, of course, there is seldom an incentive to settle unless a party genuinely believes it risks a significantly worse outcome by going to trial. Therefore, effectively managing risk and preventing loss generally requires that both sides yield something of value to the other.
Whenever one side offers too little or demands too much, the other side may conclude it has “nothing to lose” by going to trial — a phrase I have been hearing with greater frequency lately. Having “nothing to lose” can lead one side to take risks that it might not otherwise have taken, which, in turn, creates unnecessary and avoidable risk for the other side.
To prevent an avoidable loss, always give the other side “something” to lose by going to trial. Otherwise, the other side might just throw a “Hail Mary” — which can lead to unpredictable results. If you don’t believe me, just ask the 1972 Oakland Raiders and the 1984 Miami Hurricanes.
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