Flip the tables on impasse

Mike, here’s a question for you.  Sometimes in mediation we get pretty close, but we can’t cut a deal, primarily because the other side, unlike my side, is so stubborn and unreasonable.  Any suggestions for what we can do in this situation, besides giving up and heading to Vegas.

— Frustrated In Fullerton —

Dear FF.   What happens in Vegas … well, it could actually settle your next case.  Which is a bit of a disappointment for me since I don’t really like to gamble.  I work way too hard to just give my money away (hey, it’s really hard work walking back and forth between rooms, grabbing a piece of Judicate West pizza on the way, and maybe sneaking a peek at Sports Center on the lobby television).

The point is, there is a gambling technique that is seriously overlooked and undervalued when it comes to resolving your litigated cases.  I can understand the hesitation – it seems somehow unprincipled, and we like to settle our cases based on principle.  But seriously, while principles get us started, how many cases really get across the finish line without some good old fashioned unprincipled number bashing.

I’m not saying this technique works for every case. In fact, it won’t work for most disputes.  However, I’ll bet you that in the right circumstance, this technique will close the deal, leaving both parties with a settled case…and a good story to tell.

I’ll tell you what this trick is in a minute, I promise (no fair reading ahead), but here’s what inspired me to tell you about it: a pretty bad old (1955) science fiction short story called The Golden Judge by Nathaniel Gordon (sorry, Nathaniel, the idea was fun, but the story was just plain stupid).  In it, the protagonist used this dispute resolution process to solve the Israeli/Palestinian crisis, the dispute between Britain and Argentina over the Falkland Islands, Northern and Southern Ireland’s dispute over six counties, an island dispute between “Communist China” and “Formosa” (I told you it was an old story), and more.

I’ll admit right now, this gimmick (and I suppose it is a gimmick) is not actually that powerful of a peacemaking tool; however, as I said, in the right circumstance it just might be powerful enough to settle your case.

What circumstance?  I think a few things need to line up just right for this to work: (a) each side has to want a settlement; (b) there can’t be too much distance left between the parties’ settlement positions; (c) the reason this gap hasn’t been bridged is due more to stubbornness, or machismo, or “face,” than anything else (i.e., there’s no great principle or sense of justice causing the impasse); and (d) each party has a little sporting nature, or sense of adventure, or a gambler’s spirit.

I used this settlement technique once when I was a young attorney trying to settle an environmental dispute with a developer who discovered a century old tar pit under his soil, which for some reason he was not pleased with.  (Developers can be so touchy.)  We had negotiated a deal to within $5,000 when things stopped.  I was already under my authority, so I could have agreed on behalf of my client to pay the extra $5,000, but I wanted to save my client the money (and hence show off my awesome negotiating prowess), and besides he was a rich developer who knew the tar was there when he bought the place (it was known around town as “the Tar Pit” for cryin’ out loud!) and he didn’t need the money.  He refused to budge because he was a developer, a born gambler, and I was a young kid, and he’ll be damned if he’ll let some punky young lawyer get the best of him.

I met him in one of the small town’s only bars to hammer out the last term.  We could have split the difference easily enough, but where’s the fun in that.  Neither of us even considered it.  But we did manage to settle the case, and you can probably guess how.  Yes, alcohol was involved.

We flipped a coin.  A $5,000 flip.

Never mind who won, that’s totally beside the point.

The point is, sometimes, when the conditions are right – when the parties want a deal and the gap is relatively minor, when the parties enjoy a small gamble and can live with the loss, when the problem is more ego than principle – something as simple as a coin toss may allow the parties to put this one behind them.

I suppose it doesn’t have to be a coin flip.  The coin flip has the advantage of being quick and left up to chance, allowing the loser to say “hey, it wasn’t meant to be; but I’m a man [or woman] of my word, so I’m abiding by the flip.”  But I guess there’s no reason it has to be up to chance.  Why not a golf game, a tennis match, a poker game, $100 in chips at a casino and 6 hours to see who can make the most (or lose the least) money, or forget the casino, see who’s the best investor.  Or make a cause out of it – who can raise the most money for a charity over the next month?  Or, just thinking outside the box here, who can hire Judicate West the most times in the next 12 months?  Okay, let’s not go overboard.  You get the idea.

There are other ways to channel your client’s sense of adventure to bridge a negotiation gap, particularly when faced with an unrealistic opponent.  For one such option – and I’ve done it so I know it can work, though it involves more math – you can check out the article: Bottom Line Negotiating: How A Little Negotiating Wager Can Break That Settlement Impasse . . . Or Make You Money Trying

[And if you are curious about The Golden Judge, it’s in the public domain and can be found here for free.]

HAPPY MEDIATING!