Three mediator tools that I used last week.

photoLast week, Defendant’s initial counteroffer was about three percent (yes, 3%!) of the plaintiff’s initial offer.  Would the young, first-time plaintiff explode with anger and despair?  Especially after she shared her emotional, painful story for which she blamed defendant?

Tool 1:  Normalize the initial impasse.

An explosive set back was possible, but it did not happen, because I knew my job was to educate her.  I let her know that mediations often begin with offers that are far apart. High and low offers are how some people communicate they feel strong in their position. I explained that the first obstacle to settlement is overcoming the fear of being the first person to step into the “reasonable range” of settlement.

I used my favorite visual aid (pictured above) to “normalize” the situation.  THEN, I mentioned the counteroffer of 3%.

 Tool 2:  Get people thinking about what is the reasonable range.

I asked both parties to consider what they felt was the “reasonable range.” To their credit, both did.  Later, one party feared that their honest, reasonable range was not in the ballpark with the other party’s range, and they asked if I would check. In a confidential way, I determined that the parties’ opinions of the reasonable range differed too much.

Tool 3:  Ask. Don’t tell. 

When I reported back that the parties were not anywhere near the same settlement range, I had several options available to me, including:

  • Decide who I thought was less reasonable and “beat on them.”
  • Assume the parties could not keep working to find their own resolution and propose a “mediator solution.”
  • Simply be transparent and ask how I could help.

In my first few mediations, I tried too hard to settle the cases FOR the parties.  Since then, I’ve come to trust that people know what is best for themselves.  I see my role as helping THEM settle.  Giving people the time and space to come to their own conclusions is the more effective approach, I’ve found.

So, I asked them how they thought I could help them.

One party asked me to state my honest view of the merits.  This is where my 29 years of litigation experience and substantive knowledge of law helped.

I stated my view on how to analyze the value cases, generally.  Then, I applied that analysis to the facts put forth by both sides to the mediation.  I did NOT suggest any dollar figures.

Long story short, the parties continued working, and they settled their case.

 Jeff Merrick

Copyright 2013, Jeff Merrick, Merrick Mediation