By Steven G. Mehta
It has been several months since I have last written, and I thought I would get back into writing. Some of the reasons that haven’t written were vacation, burnout, family crises, busy life and practice, and other issues. I also found that writing was important to me for my own education and self growth. So therefore, I am now back.
The question I have is which came first the chicken or the egg?
It’s a question that has plagued man for centuries: Which came first, the chicken or the egg?
Well, scientists in England say they’ve found the answer: The chicken!
Researchers wrote in a recently published report that it all comes down to one protein – ovocledidin-17 – which helps in the formation of the egg’s hard shell. This essential ingredient in the formation of the egg can only be produced inside a chicken, scientists from universities in Sheffield and Warwick concluded.
But what does this have to do with mediation? Everything. In mediation, often times both sides will start off with initial offers that are extreme. Each side invariably states something to the effect that “the other side’s position is so unrealistic that mediation is not worth it.” The other side responds, “Our position is such, because they won’t make a reasonable demand/offer.” Well which one came first, the unreasonable demand or offer? Probably both. Each side reacts to each other and to what they perceive the other side will do. So sometimes even though one side made an offer/demand, they are in fact reacting to what they percieve the other side might do. Thus which came first, the chicken or the egg?
The other issue with the chicken and egg is the fact that you can debate that topic for a little while, but at some point the debate becomes meaningless and the parties need to be able to move beyond that debate otherwise the case may never settle. Here are some thoughts as to how to move beyond that:
Ask the parties to change the style of negotiating. Maybe change the way the offers are made such as going to hypothetical offers/demands or brackets.
Help the parties to understand that the chicken and egg discussion won’t change the nature of the settlement process. Suggest that someone has to go first and since the next offer/demand is not your final, if the other side doesn’t respond back fairly, you can “put on the brakes.”
Let the parties know that you understand that they came here in good faith and that the other side did also, but both sides are afraid to commit.
Suggest that if the other side started at a billion, that such a number would not dramatically change what the value of the case.
Suggest that your side has an evaluation of the case, and just communicate offers/demands in light of that evaluation irrespective of what the other side does.
The key is that there needs to be some way to break the logjam. As a mediator or party, you have to be able to give some basis for why the change in position will occur. So long as you keep trying to find such a rationale, the process is working.