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LEFT BRAIN APPEALS

The Deal “Closer”

“Floating” a number

A mediator is like a poker player in that he/she is constantly looking and listening for “tells” as to in what range a party may be willing to settle.

One of the ways this is done is by mentioning a number in discussions, and looking for a reaction from the parties or their counsel.

A good mediator, like a good poker player, knows that he/she will often be given false feedback in an effort to mislead him/her as to a party’s goals. Part of the art is being able to “read” people when they respond.

“If I could, would you?”

The most direct way of “floating” a number is to pose it as a hypothetical, such as: “If I could get you $___________, would you accept it?”

An advantage of this approach is that it does not require the mediator to expend any of his/her personal credibility (as occurs in the making of a mediator’s proposal) to obtain feedback about a particular range of settlement.

A problem with the approach is that if the party answers “no,” even in an effort to mislead the mediator as to his/her goal, the party will frequently become committed to achieving a settlement that exceeds that number.

The “mediator’s proposal”

A “mediator’s proposal,” as its name suggests, is a proposal made by the mediator, rather than any of the parties. It is generally regarded as the mediator’s “last ditch” effort to secure an agreement when the parties have reached loggerheads in their settlement efforts. In making such an offer, a mediator relies on his/her credibility with the parties as a fair and knowledgeable neutral. It is through the “mediator’s proposal” technique that most employment cases are resolved.

Extreme care must be taken in presenting a “mediator’s proposal” not to suggest that the other party is willing to agree to it. This is because one of the fundamental purposes of the “mediator’s proposal” is to preserve both parties’ bargaining positions if either party rejects it.

The amount of a “mediator’s proposal” is generally the result of two considerations.

The mediator’s personal view of the settlement value of the case

The mediator’s view of the number that has the greatest likelihood of being accepted by both parties in light of their prior moves in negotiations and other feedback

The “Solomon solution”

A “Solomon solution” is a proposal that the parties settle their dispute by settling at a number in the precise middle of their last stated positions.

Because of its rote nature, it does not require the investment of any personal credibility by the mediator.

It may sometimes be used to bring the parties together after a mediator’s proposal has been made unsuccessfully.

Following up with the parties in the event of non-agreement

If one has failed to reach an agreement, one should view the mediation as simply the beginning of the settlement process, rather than the end.

It may be that the parties need to engage in additional discovery, or to learn the outcome of some pending/contemplated motion, before they may be ready to resume settlement discussions.

It may also be that all the parties need is for the consequences of the failed settlement effort to sink in to bring them back to negotiations.

Recognizing that time is sometimes an element in bringing the parties to final resolution, most professional mediators make it a practice following a failed mediation to periodically “touch bases” with counsel to see if there is anything further they may do to assist the parties in achieving settlement.

The principal benefit of the mediator keeping in contact with the attorneys is that it provides the parties a means of resuming discussions on the subject of settlement without losing “face” by being the first one to broach the topic.

If one desires to make a further move to revive settlement discussions, and one has not heard back from the mediator, one should not sit pining by the phone waiting for him/her to call. Give the mediator a ring. He/she can be trusted to tell opposing counsel that it was as a result of his/her initiative and “arm-twisting” that the concession was granted.

In any case, keeping the mediator involved in the settlement process following an unsuccessful mediation effort frequently pays substantial dividends.

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