Perspectives from a Mediator/Arbitrator

Friday, May 12, 2006

Mediation tip #5 - Getting Agreement - Part 3 - a trick of the trade

Calling it a trick is not doing it justice. As a mediator, I am often faced with the situation that I know that the parties want to resolve the matter but for various reasons they are not willing to move towards the deal themselves. It may be because of a perception that they do not want to appear to be weak to the other side. It may be because they fear that if they move too far that the other party will not move again and that they will have to fully compromise to the other party's position. What I frequently do in this situation is what I have called the "blind taste test". I tell each party what the deal is going to be. If I think that there are issues that may be contentious even after a deal is reached - such as the form of the release to be signed - I work all of those out beforehand. I then present the deal to each side. I tell each side that they will only find out the answer of the other party if they themselves say "yes" to the deal. That way, a party can move safely to the position of accepting the deal without worrying that a new "floor or ceiling" has been created by their accpetance. If there is a "yes" from every party, there is a deal. If a party says "no", then that party does not find out the position of any other party. In a situation where there are only two parties, a party that says "yes" will know the position of the other party - there is either a deal or no deal which reveals the decision of the other party but the party that says "no" will not know whether the other party said "yes" or "no".

In multiple times using this method, I have achieved a deal in all but one case. It is obviously very important for me to choose carefully something that I anticipate will be accpetable to all parties when I present the deal. In the one case where this method did not work, there was a fact that was revealed only after I had told each party the deal that impacted the willingness of one of the parties to say "yes". A deal was actually achieved because once I explained the new fact and it was accepted, that party realized why the other party had said "no" and adapted its settlement position.

There are some further nuances to the "trick of the trade" which I would be pleased to explain to anyone who wants further information.


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