MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 132 NEGOTIATION PHASES OR PROCESSES AT MEDIATION The types of negotiation tools used at mediations go through stages. This Mediation Message examines each of those processes in the order that they usually occur. Distributive or marketplace bargaining – In most instances, mediations start with distributive or marketplace bargaining, in other words, the parties exchange single numbers, a process very similar to how people buy houses and cars. Generally, the…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 80 BRACKETS No aspect of mediation is more misunderstood than the use of brackets (less commonly known as “ranges”) in negotiating settlements. As a result, I’m using this message to clarify that process. (By the way, any similarity between mediation brackets and NCAA basketball tournament “bracketology” is purely coincidental and unintended.) What are brackets? Brackets are the use of two contrasting numbers to create a range for continued negotiations….
THE MEDIATOR’S PROPOSAL Because of misconceptions regarding a mediator’s proposal, I am taking this opportunity to clarify them. What is a mediator’s proposal? It is just that, a proposal by a mediator for settling litigation between the parties. It does not indicate the mediator’s opinion of the merits of the case. Instead, it reflects his educated guess as to the terms that all of the parties will find acceptable. When is a mediator’s proposal made?…
THE LAST-MINUTE DEAL BREAKER After several hours of intense back-and-forth discussions, the mediation process prevails once again and the mediator, with great satisfaction, informs one of the parties that “We’ve got a deal!” only to be told, in response, “Oh, by the way, we can only make payments in installments” or that “We must have a confidentiality clause; substantial liquidated damages for breach of the confidentiality clause and/or a stipulated judgment for an amount far…
Who Goes First? Message no. 13 discussed the issues to consider in deciding what an opening offer or demand should consist of. This message looks at which side should make that first move. Typically, plaintiffs and defendants appear to be comfortable with the former making a demand and the latter responding to it. Both sides, though, should consider the advantages and disadvantages of sticking to or deviating from this order rather than maintaining the status…
The Opening Offer The opening offer or demand, for obvious reasons, ranks far below any final settlement figure in importance. Nevertheless, it is a critical step in the mediation process and can have an impact on whether the matter settles and, if so, at what amount. Pepperdine Law School’s Straus Institute for Dispute Resolution teaches that the opening offer falls within four self-explanatory zones: “zone of agreement,” “reasonable,” “credible” or “insult.” This message discusses some…