Sending the Right Messages in Mediation

by | October 2023

Michael Ludwig outside smiling
“We want to send a message!” is how attorneys sometimes explain the thought process behind certain offers and demands in mediations. And I get it. The parties are in separate rooms, settlement negotiations are intense, and there can be a desire to advance your narrative by making a strategic offer or demand that is calculated to inform (i.e., send a message to) the other side.

Of course, every offer or demand sends the other side a message of some sort or another. But when an attorney tells me that a particular offer or demand is intended to “send a message,” it almost always is the case that the intended message actually is counterproductive to getting the case settled.

When parties in a mediation want to send a message with a strategic settlement offer or demand, the message often takes the form of an offer or demand that represents a particularly small move, a move that is smaller than the prior move, or a move that breaks a negotiating pattern, and not in a productive way. The move essentially is intended to be unreasonable or insulting, which ultimately is what makes it unproductive. The messages these types of offers and demands send can be:

“Your number is crazy, so our number is going to be crazy too.”

“We will not get reasonable until you get reasonable.”

“We’re slowing down, so don’t get your hopes up.”

“[Screw] you!”

And on it goes.

There is a better way. Mediators often advise parties to use strategic offers and demands to send positive and encouraging messages instead of messages of unreasonableness. Cooperation and reciprocity are powerful concepts in mediation and in settlement negotiations in general. A slightly bolder offer or demand, instead of an intentionally unreasonable one, can send a productive and hopeful message like:

“We are serious about settling today.”

“We are being reasonable and realistic, and we expect you to respond by doing the same.”

“We are reliable and cooperative negotiating partners.”

Often, the difference in the amount of an offer or demand that sends a negative message and an offer or demand that sends a productive message is not material, especially relative to the amount of an objectively reasonable settlement. But the impact of such an offer or demand, coupled with the mediator reinforcing the benefits of reciprocity in the other room, can be dramatic.

To be sure, many attorneys and parties are comfortable negotiating in a way that sends productive messages to the other side. And sometimes mediations start slowly, but then gravitate toward more cooperative moves later in the process. Such moves can be construed as “momentum moves,” where a party makes a bigger move than might be expected with the goal of encouraging reciprocity from the other side and creating momentum. Others frame this kind of negotiating as “courageous,” because it can mean that a party is making bigger and bolder moves even when confronted by something that is not reasonable from the other side.

Of course, if the other side does not reciprocate to your cooperative negotiating efforts, then another strategy may have to be considered. But most often, a bold or courageous move from one side motivates the other side to respond in kind. And that usually is when a clear path to settlement emerges.

 

Hi I’m Mike Ludwig

I committed myself to honing my craft as a mediator and relentlessly learning everything I could about dispute resolution. I will endeavor to share thoughts and insights about some facet of mediation, negotiation, and dispute resolution, and other information that could be helpful or interesting to you.