Dancing with lawyers

For most of the 17th, 18th and 19th centuries, a dance was an extremely formal, rule-driven process. There was the box step of the waltz and the mincing footwork of the minuet, not to mention the Irish jig. Somewhere along the line, it's hard to say exactly when, but probably in the 1920s, all that changed and whatever remaining formalities were pretty much obliterated by the time that rock music came along in the 50s and 60s. Oddly, however, the "dance" in the context of negotiating settlements in mediation seems to have escaped the freedom of the 60s and it remains entrenched in a rigid, rule-driven process that eerily mimics the formality and artificiality of a 17th century waltz. There are steps, there is a sequence and it is apparently forbidden or at least severely frowned upon, to alter the rules. But if you want your next mediation to be more efficient and more successful, you might want to think outside the box step.

In the context of resolving cases at mediation, the rules of the dance are these: Every dance must start with a demand (in the context of a dance, this is interesting - one would think that a dance might start with a question, not a demand: "Would you like to dance?"). Every demand must be met with an offer. Every offer must be met with a counter-offer. And this process must continue until the number in the offer is close enough to the number in the demand resulting in a settlement. Occasionally, but not often, there is a variation on this theme: A demand, or offer, will not be met with a response without a condition: "We won't offer "$X" until your demand is "$Y."

Given that we no longer live in the 17th century, it's curious that lawyers seem to find the formalities of the dance so important. I suspect that we still use these formalities for several reasons. First, lawyers and parties are used to dancing in this fashion. In this sense, the formal "dance" in mediation, is much like the process of negotiation that each of us learned in childhood. Imagine two young boys playing marbles (I know I'm sadly dating myself with this example). One player would like to buy the other's "shooter," and asks: "Would you sell that shooter for a quarter?"

The reply is: "I might for 50 cents."

"I'll give you 30 cents."

"Make it 40 and it's yours."

"I only have 35 cents on me."

"Okay, it's a deal."

Or imagine this familiar scenario: "Mom, can I stay up and watch the rest of this movie?"

"No, you have school tomorrow."

"How about a half-hour of the movie?"

"No, 15 minutes is it."

"Aw, alright."

When we grow into adulthood, the same process occurs, although the numbers are higher, and negotiations are more often over things like cars and business deals and not marbles (perhaps because we have lost our marbles). Regardless of price, and regardless of the subject of the negotiation, the process remains the same. It's familiar and comfortable and we think that it works.

The second possible reason is fear. No one likes or wants to try something new when there's a lot at stake. The third possible reason is that we haven't been taught a different way to negotiate. As a result, even those lawyers who might feel the urge to dance in a different way, don't know any other dance steps.

The fourth possible reason is that nobody suggests alternatives. In this regard, although mediators have more formal training in the process of negotiating, mediators often fall into the same "comfort rut" as lawyers. Mediators, too, revert to the rigid and traditional dance steps, even though they know other dances and other steps. Perhaps this occurs because mediation isn't the best place to teach new dance steps or perhaps it occurs because it's simply easier to dance the same old steps.

The fourth reason is that the traditional dance usually works.

The problem is that the traditional dance doesn't work all the time and even when it does, the process is inefficient, expensive and time-consuming. It can also lead to frustration and anger and set back the prospects of settling a case. Even when the dance "works," the process of going back and forth in increments of money, sometimes very small, is agonizingly slow and cumbersome. As each offer is made, the party who must respond spends time parsing the nuances of the response. Should it be $125,000 or $122,500? Should it be communicated with a "back story," such as "We are offering this, but we are running out of room at this number." Should it be communicated in the opposite way: "We are offering this, but there's more on the table." Or, should it be the dreaded "last best and final": "We are offering this, and this is all that there is." All of this takes time, and frankly, most of the time is wasted because most of the time the parties and the mediator have a good sense of where the case will settle and even if they don't, the nuances of the back and forth have little to do with reaching that number.

I will freely confess my own reluctance to dance the traditional dance at mediation. I suspect that I am not alone in this - I believe that many other mediators and probably many lawyers, and even their clients, recognize the inefficiency of the process and long for something that works, if not better, at least faster. In my own mediation practice I have tried in recent years to substitute a slightly different process, or, you might say, a slightly different dance. In my version of the dance I try to focus on "ranges of numbers" and not demand-offer-counteroffer. This is in keeping with the idea of reaching the "ZOPA," the Zone of Possible Agreement, as rapidly as possible, the theory being that if the parties are "inside" the ZOPA, the case will settle. If not, the case probably won't settle. Once you know that the parties are inside the ZOPA, getting to the exact final settlement number is a relatively simply and efficient process.

Finding out what the ZOPA looks like does not require the process of demand - offer - counteroffer. It requires a more rational discussion of where each party would like to end up - not necessarily as their "bottom line," but more in the sense of their "range of numbers." This discussion should occur early in the process. Parties, even if they know and trust the mediator, rarely put their bottom line on the table early on, but they are very often willing and able to discuss the "range of numbers" that they are considering. These ranges of numbers are usually sufficient to give the mediator a read on where the case will settle and how to get there most efficiently.

If it's your goal to settle more cases, to settle them in less time and with less aggravation, you might want to consider learning this new dance step. This new dance might seem awkward at first and counterintuitive to your experiences, but it's effective and efficient. To make it work, be prepared before you step out onto the dance floor. First, know what you want, know your bottom line, and have an idea what your lawsuit might yield, but be flexible and willing to listen openly to facts and arguments that might cause you to reconsider all of those factors. Second, be honest and willing to share with the mediator a range of numbers, reasonably close to your bottom line, in an effort to educate the mediator and your opponent as to where the case might settle. This may just let you leave the dance floor before it's dark outside.