The traditional negotiation dance assumes an open exchange of demands and offers. Occasionally, however, caution counsels otherwise — as it did in a mediation a few months back.
Returning for a second session — the first having stalled over coverage issues — Plaintiff opened with a $3,000,000 demand. Anticipating the possibility that Defendant’s opening offer might not be well received, I suggested that the parties negotiate “in the dark” until the gap closed to $1,500,000 or less.
Despite their intial discomfort with the idea, both sides agreed to give it a try.
Defendant communicated its opening offer to me in strict confidence. Without being told the number, Plaintiff reduced his demand. This pattern continued for three additional rounds, at which point the gap fell below $1,500,000 and I disclosed their current numbers: Plaintiff’s demand was $2,000,000; Defendant’s offer was $650,000.
I then proposed a second round of negotiating “in the dark,” with a new objective: reduce the gap to $750,000 or less. Again, both sides agreed.
This time, Defendant exhausted its settlement authority before the new threshold could be reached. But something more important had already been achieved. By negotiating in the dark, the parties had gathered valuable information, recalibrated expectations, and managed risk — without having been distracted and potentially derailed by the other side’s numbers.
Having learned the gap was more than $750,000 but less than $1,500,000, the parties decided to convert the matter to Baseball Mediation™ following the second session.
Two weeks ago, the parties reconvened to complete settlement negotiations pursuant to the Baseball Mediation Protocol. By the end, the gap had been narrowed to $125,000 — an amount both sides considered to be “within the margin of error.”
Rather than split the difference, the parties elected to put their trust in the process — allowing the impasse-breaking mechanism to determine whether the matter settled for Plaintiff’s final demand or Defendant’s final offer. Afterward, both sides expressed their satisfaction with the final result.
Sometimes the traditional negotiation dance is not the most effective way to reach a settlement. Ironically, dancing in the dark is often more illuminating.
As always, it would be my pleasure to assist you and your clients in the dispute-resolution process. I’d welcome the opportunity to be of service.
Best regards . . .
Floyd J. Siegal