Chapter 8 Bridging the Gap

• Jurisdiction: United States

Chapter 8 Bridging the Gap

I've got a brand new pair of roller skates You got a brand new key. I think that we should get together And try them on to see. I been lookin' around awhile You've got somethin' for me Oh, I got a brand-new pair of roller skates You got a brand-new key.

— Melanie Safka

At this late stage of a typically long day of negotiating, everyone is growing weary, and nerves are feeling frayed. Both sides have a general idea of where the other side wants to go. Typically, there remains a fissure that must be acknowledged and accommodated. You might be in "sweating range," but dry towels seem nowhere in sight. Consider this the time of reckoning that you have worked hard to reach—and make the most of it.

Even if you have already been uber-conscience of your interaction with the mediator, "pay attention" becomes even more important now. Listen to your mediator's every word, every inflection, and every countenance. He is now looking even more intently for indirect clues in each room as to where some wiggle room might lie. He may ask you nonchalantly where you think the other room might need to go. Your answer is oftentimes his indirect way of divining where your own room might bend to reach a deal. Or he may volunteer that his intuition is that the other room might just flinch at a certain number that he casually mentions in your room. This is not a breach of confidentiality. This is just an intelligent supposition by the mediator, essentially a trial balloon to test your response to that position. Many mediators will use a slightly higher number in the defense room than necessary or a slightly lower one in the plaintiff's room. This fudging acts as his own safety valve, his insurance against the dreaded presence of "reactive devaluation." The latter is the human emotion that reflexively has you reject another side's proposal, because fully accepting it would be deemed a "loss" for your room and...