Search Mediators Near You:

Mediator Diane Levin on the Mysterious Math of Adding and Dividing by Two

Friend Diane Levin of the Online Guide to Mediation writes:

I think the question you raise here, requires a cognitive psychologist to answer. Having said that, I’ve seen this phenomenon [of the negotiation ending half way between the first two offers] myself. I suspect it’s because the notion of “splitting the difference” or “meet me halfway” is so deeply ingrained in us.

Perhaps on some level this result “feels fair” to parties — not surprising when even envious monkeys can spot a bum deal.

When the “Fair” Result Doesn’t Result

However, I don’t think it’s fair to assume that this applies in all cases. I don’t believe it holds true in mediations between an attorney and his/her client on one side and an unrepresented party on the other, when you’re more likely to get out-of-the-ballpark initial demands from the unrepresented party (the “it’s what my third cousin who’s going to law school said I could get” phenomenon), or when either or both parties are unprepared to negotiate and have no objective criteria on which to base their dollar demands. Then the end result is wildly different from what you’ve described. And those are the cases that can break your heart.

For example, consider a not-so-untypical employment discrimination case between an unrepresented complainant and an employer with their lawyers. The complainant’s first demand is $900,000 — about $896,000 shy of what would have been a reasonable starting demand. The counteroffer is $500. The complainant’s next move is to $50,000. The counteroffer is $750. In the next exchange of numbers, the complainant moves to $35,000, followed by a counteroffer of $900, which astonishingly settles the case.

Mathematical formulae are all very well, but they don’t take into account all the variables that can come into play at the table. I’ve long stopped trying to predict what clients will do — I just strap on my seatbelt and get ready for the ride.

I’m curious to hear what the experts on human behavior have to say on this. And I’m very much looking forward to the next installment in this series, Vickie.

THANKS DIANE!!  You can see Diane’s thoughts on all things mediation at the Online Guide to Mediation.

                        author

Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

Featured Mediators

ad
View all

Read these next

Category

Caucus: An Aid in Mediation

The origin of the word caucus is unclear however an early reference dates back to February 1763 when John Adams of Braintree, Massachusetts, second president and first vice president of...

By Steven Leigh
Category

Federal Circuit Unveils Model Order on E-Discovery in Patent Cases

Disputing Blog by Karl Bayer, Victoria VanBuren, and Holly HayesTo address the problem of excessive costs of the discovery process, particularly in patent litigation, the Advisory Council of the Federal...

By Victoria VanBuren
Category

Mediation and the Power of an Apology: The Case of the Missing Snowman

This article was first published by the Missouri Lawyers Weekly (April, 2000) In February, I watched a trial involving a $38.00 gingerbread house. The plaintiff bought the house shortly before...

By Paula Young

Find a Mediator