Baseball Mediation™

What is Baseball Mediation?

Baseball Mediation™ is a unique dispute resolution process that Floyd designed by fusing elements derived from “Baseball Arbitration” and “Night Baseball Arbitration” with other elements derived from conventional mediation. What makes the process unique is that an impasse-breaking mechanism is built directly into the mediation process.

The process was developed after he came to realize what in hindsight seems rather obvious: the only impediment to reaching a resolution in every mediation is the absence of a mechanism — agreed to in advance — for resolving a final impasse.

By incorporating concepts from “Baseball Arbitration” and “Night Baseball Arbitration,” Floyd was able to devise a simple and straightforward protocol that instantly resolves a final impasse, which he then integrated it into the mediation process. This protocol — which is described in detail below — is automatically triggered if settlement negotiations at mediation result in a final impasse. Once triggered, this protocol immediately resolves the impasse, guaranteeing same-day resolution of the dispute while simultaneously ensuring that the parties retain maximum control over the outcome.

Baseball Mediation is offered as an alternative to traditional mediation or binding arbitration.

How Does Baseball Mediation Work?

At the outset of the mediation, Floyd will privately discuss the case with counsel and the parties. Based upon those discussions, plus his review of the mediation briefs and his pre-mediation telephone conferences with counsel, he will then take a few moments — before the parties engage in settlement negotiations — to privately consider the information he obtained and to confidentially record the following three “projections” on the Baseball Mediation Worksheet:

• • The minimum amount projected to be within a realistic settlement range (“Projected Minimum”);
  • The maximum amount projected to be within a realistic settlement range (“Projected Maximum”); and
  • The midpoint between the two (“Projected Midpoint”).

His objective is to identify a realistic settlement range and calculate the midpoint, not to substitute his subjective view of the value of the claim.

Once completed, the Baseball Mediation Worksheet will be emailed to all counsel, “password-protected” so it cannot yet be opened. Thereafter, the parties will engage in settlement negotiations just as they would in any mediation, until they either reach a settlement or mutually agree they have reached a final impasse.

If the parties mutually agree they have reached a final impasse, the password will be shared with all counsel so they can access and review the Baseball Mediation Worksheet, with the understanding and agreement by all parties — pursuant to Stipulation executed in advance — that the dispute will automatically and immediately be resolved for either: (a) Plaintiff’s Final Settlement Demand or (b) Defendant’s Final Settlement Offer, whichever is closer to the Projected Midpoint.

In the unlikely event that Plaintiff’s Final Settlement Demand and Defendant’s Final Settlement Offer are equidistant from the Projected Midpoint, the dispute will automatically be resolved for the Projected Midpoint.

In other words, there are only three possible outcomes once the parties agree they have reached a final impasse:

• • The dispute will automatically be resolved for Plaintiff’s Final Settlement Demand, if it is closer to the Projected Midpoint;
  • The dispute will automatically be resolved for Defendant’s Final Settlement Offer, if it is closer to the Projected Midpoint; or
  • The dispute will automatically be resolved for the Projected Midpoint.

Why Is Baseball Mediation Effective?

Baseball Mediation requires the parties to view settlement negotiations from an entirely different perspective. While the parties’ ultimate objective remains a negotiated settlement, the parties’ principal focus is to end negotiations closer to the Projected Midpoint in the event negotiations result in a final impasse. This leads the parties to negotiate more realistically, eliminating unreasonable demands and offers. Put another way, having stipulated they will resolve a final impasse by the agreed-upon protocol, each party is incentivized to present more reasonable demands and offers to the other party because unreasonable demands and offers make it less likely they will end negotiations closer to the Projected Midpoint than the opposing party.

Baseball Mediation prods the parties to continuously move toward whatever they think is most likely to be the Projected Midpoint. Because the Projected Midpoint is unknown, it works much like a hidden magnet, drawing the parties toward one another. Consequently, the gap is continually closing, increasing the likelihood the parties will reach a settlement on their own. The statistics to date bear this out: in 100%  of the cases, the parties have either reached a settlement or been less than $50,000 apart when they declared a final impasse.

Baseball Mediation assures an outcome that is acceptable to both sides even if the parties fail to negotiate a settlement on their own, because neither side will declare a final impasse unless they are prepared to accept the risk that the opposing party’s then pending demand or offer is closer to the Projected Midpoint, which would automatically result in it becoming the amount of the final settlement. If a party is not prepared to accept that risk, that party will continue to negotiate.

Baseball Mediation As An Alternative To Binding Arbitration

For a number of reasons, Baseball Mediation may be preferable to Binding Arbitration:

With Baseball Mediation , the parties have the same assurance of closure, but the process is more efficient and cost-effective because: (a) there’s no need to present testimony from parties and witnesses; (b) there’s no need to retain experts to testify; (c) there’s no need to pay for the time an arbitrator spends hearing testimony, reviewing exhibits and preparing a written arbitration award; and (d) the outcome is known immediately, rather than weeks or perhaps months later.

With Baseball Mediation , the parties retain complete control over the outcome, rather than relinquishing control to the arbitrator, thereby eliminating the risk of an unexpected, unreasonable or unacceptable outcome.

Conclusion

In short, Baseball Mediation offers the parties a unique way to manage risk, while also guaranteeing same-day resolution, because the parties always know — and, more importantly, determine and control — all of the possible outcomes.

If you would like to know the perspective of a claims adjuster who has engaged in the process, please read A Claims Examiner’s Chronicle Of “Baseball” Mediation By Erik Livas

For additional information about Baseball Mediation, including a summary of results obtained by others who have previously engaged in the process, please contact Floyd at fjs@fjsmediation.com or (818) 262-5830.