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JEAN LAWLER:
Well hello and good day, I’m Jean Lawler. I’m your host of the ROADS TO Resolution ~Closure and ~Certainty podcast. It's so nice to be here with you today. As a mediator, I’m honored to be invited into other people’s lives, and certainly I’m honored to be invited into your life, and your time today. So thank you.
Today I wanted to talk about the “dance floor”. We all like to dance, probably most of us do, and there is, of course, a special meaning when it comes to mediation and what the “dance floor” is, and doing “the dance”. So what do mediators mean when they refer to the “dance floor”? Well basically, at least what I mean when I refer to the “dance floor” is: the range, if you had a line, and then ending points where you’re starting and beginning. And then, how are you making the dance floor smaller so that you finally get to an area where there might be able to be a resolution? So that said. Let’s talk about the “dance floor”.
First of all, you’ve got to get on to the "dance floor". Oftentimes settlement negotiations begin with offers or demands that are at the far extreme–one extreme or the other or both extremes, and that is called the “insult zone”. So if you do receive an offer or demand that you’re ready to roll your eyes at, and it's like, “Come on, I’m ready to pack it up and leave”. Number one: Don’t leave. That's just the "insult zone" and if that is what you’re in, like I said, you will get out of it. Okay? It may take a few offers, demands going back and forth, but to get onto the "dance floor" that may be an obstacle that you have to overcome. Think back to junior high, the beginning of high school, maybe even the end of high school dances that you had at your school, and the boys lined up against one side of the walls, maybe, the girls lined up against the other, and how it took a lot of effort, guts, whatever it might be, to move out onto that dance floor. Some boys and girls were out there right away, they were maybe the more aggressive ones, others hung back and needed a little encouragement to get to the center of that dance floor. So, just think of that at times when you think of negotiation.
As an example, I have had many times when the opening demands and the opening offers are just so far apart. You could be millions on one end from the plaintiff side and a four-figure number on the other side, from the defense side. And immediately, the parties are thinking, “How is it that we’re ever going to get close enough to be able to resolve this case?” I can just tell you that, very oftentimes, you can. And so do not give up. In fact, I’ve heard it said from a plaintiff lawyer that the first three go-rounds back and forth, back and forth, he doesn’t even give much credibility to it. It's just trying to get you on to the “dance floor” where then you can negotiate in one of those other zones that makes sense to get the case settled. So opening demands, opening offers, never accepted, I tell the parties that. I say that, I know their lawyers have heard it before, but I say it for the benefit of the clients and maybe for the lawyers too, because emotions can run high, when offers or demands come in that are either much greater or much less than anticipated. And I’ve even seen where some people just want to get up and walk out, or if they’re on Zoom or online, they just want to leave right then and there. And I say, “No, no…no, no please stick it out, stick with me.”
Those are some examples of being in the "insult zone", and then the mediator needs to help the parties work their way down into the other zones. And as I look at my little chart here, you’ve got the “credible zone”, and then you’ve got the “reasonableness zone”–a zone of reasonable offers and demands. Those are where you’re going. So from insult, you go to credible, then you go to reasonable. And ideally you can get into the "reasonable zone" as soon as possible in a mediation, because then you still will have some work to do to get into the "zone of possible agreement". It may not be in the middle of the "dance floor". It may be on this side or it may be on this side, but whatever it is–in fact it probably won’t be in the middle because usually the demands will be very high, the offers will be on the low side, and maybe the high demands may have to come down more and the offers are going up in smaller amounts, until you finally reach a “dance floor” where the parties can be, and they can be negotiating then for a final settlement. So don’t walk out.
And it's just a number. I’ve said that so many times. Don’t get upset. It's just a number and it's not the number that the case is going to settle for. Could’ve, would've, should’ve. Wishing for the sun and the moon and the stars, doesn't mean you get the sun and the moon and the stars. Okay? That takes you through the “insult zone”.
Then you get into, as I said, the “credible” and “reasonable” zones and that’s where the numbers start to come a little closer together. And again, this is where you’re talking money. You can also be talking interests–that can be playing into this. The “credible” and the “reasonable” zones are probably more where the interests of the parties would be more fully explored, not just money. There may be a need for some unique or interesting ways to get into these zones, but ideally, you get there sooner than later. And then ultimately you get to the "zone of agreement" which is like if you had a bracket, it's where the plaintiff and the defendant are and then where it overlaps. And somewhere in there is where the case–if it can be settled–should end up being settled.
Again if you have cooperative, integrative bargaining, then you will need to be looking at issues, over just the positions of the parties. If you’re looking at distributive bargaining and it's all about the money, then of course it's all about the money and who can get the most. Not the idea of who—other things that can be given.
Once you’ve moved into and have passed into this range, then you are really–you’re doing the dance. You’re finding that "zone of possible agreement", the real dance floor. You might go back and forth. I would urge everyone to never leave a mediation without–if at all possible–some sort of offer, demand, maybe on both sides, that’s set for, maybe could be a week out. Give the other party something to think about, something to sleep on so that they can know that maybe they could wake up tomorrow and this would all be behind them. They never have to see this person again, never have to deal with this, never have to pay their lawyer any more money. Whatever it might be. What are their interests? Once you do that then hopefully you can get the case settled.
That said, that is what the “dance floor” means. And moving on to the dance floor, that’s what you do in a mediation. You dance. So thank you so much for joining me today. I appreciate your being here. Again, I’m Jean Lawler, The host of ROADS TO Resolution ~Closure and ~Certainty. Please feel free to follow my podcast, my YouTube channel, and you can look me up on my website: lawleradr.com. Feel free to send me an email if you like: jlawler@lawleradr.com. Follow me on LinkedIn. Thanks so much. We’ll see you again. Bye bye.
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