Mediation – Do Bargaining Approaches Really Matter?

I recently mediated a large personal injury case in which the plaintiff sustained severe injuries. As is often the case, the parties started the mediation far apart. I told the parties that negotiations are often reciprocal with large settlement moves responded to with large moves in return and small settlement moves responded to with small moves in return. Notwithstanding my recommendation that the parties make large moves at the outset of the mediation to narrow the range between their settlement positions, they took the path of only making small moves.

Even though we were early in the mediation, I suggested that the parties’ resort to brackets to narrow the gap between their settlement numbers. Defendant’s counsel was first to take my recommendation. Plaintiff’s counsel did not view defendant’s proposed bracket positively. Plaintiff’s counsel believed that it was too early to resort to brackets and further believed that the bracket proposed by plaintiff undervalued his client’s claims. Nevertheless, plaintiff’s counsel proposed a different bracket suggesting a much higher range for settlement. The parties went back and forth suggesting various brackets with different ranges until plaintiff again proposed a high multi-million-dollar number to settle the case.

Both parties were frustrated by the back and forth with no linear pattern emerging to settle the matter. Yet, the parties remained committed to the process while only making small settlement moves up and down. After hours, it became apparent what plaintiff needed for him to settle the case and the maximum that defendant could offer in settlement. Even when those numbers became clearer, the parties continued along their slow path of making small moves in response to small moves. The plaintiff was able to wring out the maximum amount that defendant could pay voluntarily in settlement and then elected to accept the still substantial number that defendant was willing to pay in settlement although it was still a bit less than what plaintiff hoped to obtain.

The lesson learned is that there is not one approach to negotiations. If the parties remain engaged in the process, there is always hope for settlement.