3 PerspectivesJanuary 2, 2009

How Close Are We? Another Way a Mediator Can Help

Have you ever wanted to know what the other side really wants in a case?  They’re sure to posture and ask for one thing, but have you ever wondered what they’re really looking for before everyone gets further entrenched?  There is a way to find out.

I learned how you can tell if you and the other side are really that far apart in a dispute with one of the world’s more experienced defendants. We had met before and a lot of money was at stake, and sending a settlement demand to these folks would have been pointless — no matter what I demanded it would be too much. I suspected we privately valued the case the same way, but nobody opens a case with his bottom line position. We’d have to litigate for years to get there.

Find a Mediator Who Can Help

On a quick call to the other side about something irrelevant, I floated an idea. We had both heard of mediator’s proposals, but I thought we might start this case with something a bit different — blind proposals from the parties rather than to them.

I suggested we find a trusted mediator who wouldn’t have a conflict — in this case James R. Holbrook from Salt Lake City — and confidentially submit to him our actual bottom-line positions. If our final numbers were within some amount of each other (say $500,000), he would reveal our positions and work to settle the case from there. If our positions were more than $500,000 apart, he would keep the numbers confidential, simply tell us that our bottom line positions were more than $500,000 apart, and close the file without further effort.

The whole exercise was inexpensive, no matter the outcome. This time, we weren’t within $500,000. But next time we might be.

Add Your Own Spice to the Mix

I called this approach the “blind bottom line approach” until I learned that John W. Cooley has referred to the technique, which can be used to break impasses even after disputes have been mediated, as “blind bidding enhancement” in The Mediator’s Handbook.

No matter what you call it, blind bidding enhancement can be effective if the parties aren’t, in actuality, very far apart but they are concerned with making a major concession at that point in the dispute. In my case we planned to mediate the difference if the gap wasn’t too significant, but you can do more.  You can simply walk away if you aren’t within a predefined amount, but if the mediator tells the parties they are within $x of each other you can:

1. Ask the mediator to disclose the parties’ positions and agree in advance to split the difference;
2. Ask the mediator to do a quick non-binding arbitration between the parties’ final two positions and work to settle the matter from there;
3. Agree to convert your positions to a high-low agreement and ask the mediator if she will do a quick binding arbitration between those two points;
4. Agree to convert your positions to a high-low agreement, stipulate to some of the uncontested facts and legal positions to narrow the case, and litigate from there;
5. Agree to executive escalation, which I will write more about here, and forward the dispute to uninvolved executives at each party to negotiate a final agreement between the parties’ two positions;
6. Just send the other side a check; or
7. Get on a plane, go see the other side, and get it done with no help at all.

Mediators:  Make Blind Bidding Enhancement Easy for Us

Come on, Diane, Nancy, Vickie, Chris, Jeffrey and Mariam, Geoff (when you return from summer break) and other mediators out there — make it easy for us. We have seen a short form agreement for binding high-low arbitration elsewhere; if you post a short agreement ready for download and execution that will make blind bidding enhancement easier for us, you might help us resolve our matters even earlier — because the parties just might be closer than they think in the first place.

Categories: ADR,Arbitration,Miscellaneous,Settlement,Tactics

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