Give a Reason for a Demand or Offer
To give money meaning, the parties, with the aid of the mediator, need to provide reasons for every demand, every offer, every counteroffer, and every threat to walk away from the bargaining table.
Numbers sometimes feel as if they’re the only objective reality in a universe of uncertainty and ambiguity. But numbers — particularly in dollars, euros, yen, or pounds — have unfathomable subjective meanings to everyone.
A great mediator learns what those meanings are (or aids the parties in learning them from each other) and then assists the parties in using those money meanings to resolve disputes in a manner the parties accept as being just.
Reason-giving is especially important when a party changes position. In the absence of a new rationale for an increased demand or decreased offer, the parties may react violently to a perceived injustice. Asking one party to alter his position for no reason at all violates the human sense of fairness. Most people fill the vacuum with their own imaginings, which usually leads to demonizing the position-changer and results in impasse.
When a party makes an offer or demand or changes position, help the party think up as many reasons as possible to justify the demand or offer, but share only the top one or two reasons with the other party so you have a couple more reasons in reserve, just in case you need them.
The following sections explain how to discover the reason behind an offer, demand, or change in position and how to most effectively present that reason.
Find the reason for a number
When a party presents a demand or offer, ask questions to determine how the party came up with that number. If a demand seems excessive, ask the party what she plans to do with that money. How will she use it to right the perceived wrong? Why does she feel she’s entitled to that amount?
If she were the party to whom that demand or offer was made, how would she respond to it? If an offer seems far too low, ask how the person calculated that offer. Is it based on what she can afford to pay, what she thinks the other party deserves, or something else entirely?
Don’t try to assign a monetary value to human life, because the universal tendency is to view any attempt to do so as crass, coldhearted, or sinister. Instead, make the money talk. The money should say, We’re sorry for your loss, we acknowledge our responsibility for the harm, and we’ll do everything possible to keep it from happening again.
Master different reason-giving styles
People fail to persuade when they talk past each other by using different reasoning styles:
Conventions: These are the rules your mother and grade school teachers taught you. Don’t be a tattletale. Share with your sister. Don’t whine. Say thank you to the nice man for giving you an extra dollop of ice cream.
Stories: This is what attorneys do for a living. They tell stories, read stories, make up stories, listen to stories, and then compare stories to determine whether the same rules of law that apply to one story should apply to the other.
Codes: These are high-level conventions — the rules courts follow to resolve disputes. For example, in contract law, the code states that all real estate transactions must be in writing.
Technical accounts: These are the equivalent of expert testimony; for example, an explanation of what blowing a .01 on a breathalyzer means.
If one person gives a technical account (the DNA samples found at the murder scene matched those of O.J. Simpson) and the other a convention (if the glove don’t fit, you must acquit), the chances that a jury will weigh the two arguments equally are remote. They’re apples and oranges. People simply pick the type of reasoning they’re more likely to get.
Look for the common signs of failure to persuade. The unconvinced person rolls her eyes, taps her foot, yawns, ignores what’s being said, excuses herself, or walks away. When this happens in a mediation, take a deep breath, give yourself a moment to reflect, and ask yourself whether the parties are talking past each other.
Then consider changing reasoning styles. As all mediators eventually discover, the failure of a single argument is never enough to sink a mediation. If the first reason doesn’t work, encourage the person to try another reason of a different type.