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New Impasse-Busting Techniques – Part 2

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New Impasse-Busting Techniques – Part 2

Date: September 10, 2015
New Impasse-Busting Techniques – Part 2 By Bruce Friedman, Esq. September 10, 2015 The Mediator’s Bracket This is a useful technique in both early and late stages of a mediation. In the early stage, the parties remain too far apart for distribu- tive bargaining to gain any traction. Here, you have defendants saying that if the plaintiff stays above X dollars, we are just not going to offer much. On the other hand, the plaintiff is saying that the defendants have to offer at least a seven-figure number or they are not going to get anywhere today. Voila: the medi- ator’s bracket. No one owns the numbers, just the mediator. The mediator proposes high and low numbers that neither party has offered or demanded. For example, the numbers may be pretty far apart ($5 million and $500,000 or $4 million and $1 million), but this works when the parties were at, for example, $8 million and $225,000, and were not willing to move with that much distance between them. Buy-in by the parties will bust the impasse and allow for an increased pace of negotia- tion. Like all impasse-busting techniques, even if the parties reject its use, discussion of the technique and the mediator’s proposed bracket will prompt a very helpful discussion This article was originally published by LAW.COM and is reprinted with their permission 1.800.352.JAMS | I have recently discovered some additional, impasse-busting techniques for your consideration when the negotiating process grinds to a halt. in terms of where the parties may be willing to go and a bracket that might work. Late in the mediation, the parties should be able to propose their own brackets with some medi- ator consultation, but the mediator’s bracket could be used as a means of closing a settle- ment as well. Baseball Mediation If the thought of this one gives you the chills, you already get it! Here, the parties have been at it all day, but neither is willing to compro- mise further in order to close the deal. Here we go! The mediator proposes that each side pick a number and the mediator picks a num- ber. Each side and the mediator writes the number on a piece of paper. All agree that the mediator will choose the settlement number closest to what she has written down as the mediator’s number. Hopefully, this process pushes the parties to pick a number between the last offer and counter. But the mediator has to pick one of the party’s numbers and not a compromise figure. This is a controver - sial technique as it moves the mediator from facilitator to decision maker. It is not for the faint of heart and could leave a party feeling burned by the mediator. On the other hand, it is not that different from a mediator’s pro- posal with the exception that the parties have agreed in advance to accept it. The bottom line: be creative and constructive, stay optimistic and settle! • Bruce A. Friedman, Esq. is a JAMS neutral, based in Southern California. He is an accomplished dispute resolution professional who has medi- ated and arbitrated a wide range of disputes, including insurance, class action, professional liability, business, real estate and entertainment and copyright matters. He can be reached at This article was originally published by LAW.COM and is reprinted with their permission 1.800.352.JAMS |
New Impasse-Busting Techniques – Part 2

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