Thursday, May 26, 2011

Negotiaion / Mediation Bracketing

I’ve been thinking about brackets since March Madness and I thought that with the tournament complete, then that would be that.  However, brackets keep coming up in mediation after mediation.  It’s a tool that I sometimes use and I’m finding mediation participants know about them too and suggest them as well. I mediate litigated cases including workers’ compensation and personal injury claims.  We have mandatory mediation in North Carolina that requires certain people attend; however, no negotiation or settlement offers/counter offers are required.  The idea is to get the decision makers together with a mediator and then to allow free choice about how to proceed.  Now back to brackets.

Let me explain bracketing in negotiation/mediation in context. It’s a tool that I’ll use when things seem to be getting bogged down, when we are in what I call the negotiation phase of mediation, i.e., actively making proposals and counter proposals to resolve a dispute, and the progress is slowing or participants are making very small incremental steps.  This slow down usually occurs when folks have very different public evaluations of a dispute which usually translate into the numbers that are discussed.  And when folks perceive a large distance in the numbers, they often get hesitant about making significant moves.  Here’s a recent example from a personal injury claim.  Plaintiff made an initial demand of 155,000, defense responded with 20,000, then a counter at 150,000 and 24,000, then 147,500 and 25,000 - things were not going very far nor very fast.  People were getting frustrated at the pace.

At this point I asked Plaintiff (counsel and client) if they wanted to use a bracket to reframe the negotiation.  The idea is to create new numbers to recharge the negotiation.  Here’s how it worked in this case.  Plaintiff officially countered with 146,500 and said they would move to 125,000 if Defense moved to 42,000 and then it would be back to Plaintiff.  This was rejected by Defendant; however, she proposed a revised bracket.  100,000 - 30,000. This was countered by Plaintiff - 125,000 - 30,000.  Defendant rejected and proposed 90,000 - 35,000.  Note that during these exchanges participants are continuing to evaluate their claim and are in active discussions with the mediator (me) about aspects of their claim, what their future choices might be, what are the risks and opportunities of not settling the claim versus settling.

As a result, Plaintiff accepted the 90,000 - 35,000 bracket proposed by Defendant.  Then we started moving.  Defendant offered 40,000, Plaintiff 85,000, then Defendant 45,000, then Plaintiff 80,000, then defendant 50,000, then plaintiff 75,000.  With the bracketing and ensuing discussions the participants shifted from 146,500 - 25,000, to 75,000 - 50,000.  Things slowed again as both participants wanted to continue negotiating (the spread from 75,000 - 50,000 was likely in the settlement zone), but also didn’t want to over extend themselves.  It took additional work from all and the claim eventually settled for 62,000. 

The bracketing discussion allows participants to share information about what they would do if a different offer was in front of them.  Since information is a large part of the currency of negotiations, any such discussions help move matters forward.  And when things are slowing down or getting stuck, using a bracket to reframe the negotiation can often smooth the way.

Let me know about your brackets - did you pick Connecticut?

Thursday, February 24, 2011

What Would Kate Do?!

Kate, Kate, Kate – What were you thinking?!  Like all reflective mediator practitioners, I’ve been watching (studying) the new USA Network drama – Fairly Legal – to learn new mediation skills from the lead and all star mediator Kate Reed. In the first few episodes we’ve learned that mediation is about a win-win resolution, that the mediator is impartial, and that the mediator’s job is to learn about the problem and then fix it.  And that the mediator can do just about whatever they want to get the case/dispute/conflict settled.  Anything goes for ratings!

Some of Kate’s mediation skills/language rings true. She says “win-win” (I call this “all win”), the mediator is impartial and the idea of the mediator helping get matters resolved.  However, for me the operative word is “helping.” Mediators don’t have the power of a decision maker and can’t generally come up with a better resolution than that of participants.  In fact, that’s what mediation is supposed to be about – the mediator helping, supporting, encouraging, etc., participants to come up with their own ideas for resolving the dispute.

I’m all for the mediator being active in helping participants figure out how to resolve their conflict/dispute; however, I don’t consider the mediator role as the “fixer” like Kate.  I certainly do all I can to assist folks and I do want mediations I conduct to reach a mutually agreeable resolution yet, if I’ve run a quality process, then I’ve been successful.  After all, I can’t force people to settle/resolve their dispute. 
I also want Kate to "own" her mediation process.  Just about every mediator I know starts the mediation with some type of introduction, some type of mediator opening, but Kate just walks in the conference room, people start talking and even swinging punches!  It might add to the drama, but it sure takes away from the power of mediation.
So, I’ll keep watching Kate and try to add to my mediation skills.  Maybe I need some high heels for smashing watches?  Or perhaps not!  Oh well, here’s hoping we get more mediation process from Kate and the folks at USA network.

Monday, January 10, 2011


I recently heard an interview of Matt Richtel by Terry Gross (NPR Fresh Air) discussing our brains in the digital age. Richtel is an award-winning New York Times writer and he has written about how we deal with information in today's world of smart phones, iPad's, and so on. The concept that intrigued me as a mediator was his discussion and explanation concerning “multitasking.” According to the science, Richtel explained that in reality our brain can only process one item, one piece of information at a time. Thus, when we are “multitasking,” we are in reality switching from one activity to another at a very high rate of speed. And, Richtel notes that when we switch back and forth quickly, we do not often perform both tasks at a high level. Instead, both tasks are reduced in excellence because of the quick switching.

As a mediator I am often listening to one participant in mediation and also considering what to say or do next. Sometimes when I'm listening to one participant I also want to check/gauge the reaction of other participants and I will glance across the room with this in mind. Additionally, in the middle of mediation, I often consider where we are at a structural stage level. Are we still acquiring information or are we seeking to generate alternatives for resolution? Are we in the problem space of the past or the solution space focused on the future?

If you had asked me about these mediator activities before hearing the  Richtel interview I would've said that I was effectively “multitasking.”  Now, however, it appears that I am switching back and forth between various activities rather than holding both or all of them in my brain at once. Having this knowledge, that our brain can only process one item at a time, suggests that I should pay more attention to each item and do each item well and then move on to the next. This might mean slowing down a bit during the mediation process at times when my full attention on one participant is necessary. Then, once I've listened deeply, then I can take a moment to consider next steps rather than thinking about next steps while trying to listen well.