In this blog, I address a common negotiating practice – and flaw – which many parties adopt in mediation.  I offer an alternative approach, which I believe is much more effective in reaching a settlement.

The prevailing orthodoxy is to enter into a settlement negotiation with the plaintiff demanding an amount substantially higher than what it will accept, and the defendant offering substantially less than it is willing to pay.   In my experience, this gamesmanship is nothing more than a distraction.  It does not advance the ball one iota.

If you don’t ask for what you want, or offer to pay what you think is reasonable, you reduce the chances that the negotiation will be a success.

If you believe, as I do, that most disputes have a discernible range of inherent settlement value, why waste time making proposals, which realistically have no chance of acceptance? Offers and counteroffers can be formulated and delivered near or within the zone of perceived settlement values.  These will be appreciated by the recipient as a rational –- and even possibly reasonable – and should result in a response which shares the same characteristics, i.e., is seen as rational and potentially reasonable, in return. [Read more…]