Flexibility is important in all negotiations. However a couple recent cases I mediated exemplify how flexibility truly made the difference between impasse, and settlement. There were three common threads between the cases: (a) All parties and counsel were firm in their resolve at settlement at a particular number and not beyond, (b) The parties ended too far apart to simply bridge the divide; (c ) All of the lawyers involved were experienced and reasonable.
Thus, I discussed separately with each side the ending of mediation, (coupled with my usual relentless-restraining-order-proof follow up). After everyone had some time to process this, it became apparent no one wanted to go home quite yet. In one case, I did some "brokering" before issuing a mediator's proposal. In the other case, I also did some brokering, then employed some different "tools" including having numbers given without knowing the other sides' numbers. Taking away the "response syndrome" (where one side's response is impacted negatively by the other side's number), helped each side feel more comfortable in making a workable move. Once those "blind" moves were revealed to the other side, the moves appearing more reasonable, engendered more reasonable moves, following which, both sides stretched beyond their "won't move" point to reach settlement. Flexibility…it can be difficult to implement, yet it is so important to resolving disputes.