23 Aug Don’t Strike Out At Negotiations…A Good Pitch Can Set Up A Home Run!
If you’re involved in a legal action, you probably consider at least one of the other parties to be an opponent. As you and your client prepare your case, you will likely be hoping that if it is ever heard by a judge or jury (the umpire), your arguments will result in a grand slam home run that wins the day while opposing counsel strikes out every time they come to the plate.
At a mediation, however, the goal is not to defeat your opponent. You probably actually have a common goal – a mutually agreeable settlement where all parties can walk away feeling they have played a part in achieving a ritually acceptable result – let’s call it a tie for purposes of this analogy.
For this analogy to work, let’s rename the strike zone the “ZOPA” – the zone of possible agreement. After a mediator helps parties to consider and evaluate the facts, evidence and law and perform a risk analysis, she will likely be able to determine the ZOPA. This is the range of assessments within which the case is likely to settle.
When parties begin negotiating, they frequently start pitching outside of this range – sometimes very far outside of the zone. While these outlying offers are typical in commercial disputes, they can sometimes cause a mediation to terminate immediately or prematurely when one or more parties senses they are too far apart to achieve a mutually agreeable resolution.
Remember, if your goal is to get your negotiating partner to take a swing that will lead to progress, your chances are much better if your pitch isn’t an offer that’s sky high or down in the dirt. While it’s true that parties often go back and forth with multiple offers and gradually get closer to the ZOPA, if it takes too long to get there, negotiators may become discouraged and settlement opportunities may be squandered.
In baseball, if you throw too many balls, you end up walking the batter. In mediation, people simply walk away.
Good negotiators won’t want to throw a gift of a pitch down the middle of the plate that gives up too much but they should aim to throw pitches or make offers at the upper or lower end of the strike zone or sufficiently close to the ZOPA to motivate the batter to take a swing and build movement.
Keep your eye on the ball and set yourself up for a home run at mediation.
For a related article on the Zone of Possible Agreement (ZOPA), read “Personal Injury Mediation: Understanding Potential Stumbling Blocks – A New Lawyers Guide” by my colleague, Jonathan T. Cooper.