Reframe Deals to Readjust the Parties’ Perspectives
Framing and reframing are ways to put something into perspective for the one or both parties in a way that’s likely to help them find new and more productive ways to view both the problem and the potential solutions to it.
For example, if someone sues you for $100,000 for damages suffered in a car accident that was your fault, that amount might sound excessive, but if the person shows you that she has medical bills of $50,000 and is likely to be facing a long recovery with additional procedures, that $100,000 looks much more reasonable.
As the difference between the parties’ most recent offer and counteroffer narrows, framing becomes an effective technique in moving the parties closer to agreement. Framing enables you to accentuate the facts you want the parties to focus on, minimize the relevance of counterproductive facts, and present the current reality in a perspective that’s more conducive to resolution.
Cheering on both sides
The parties may not be at agreement yet, but as they move closer, call their attention to how much progress they’ve made during the settlement negotiation and remind them of the potential benefits of resolution. If the parties were $1.2 million apart when mediation began and are only $200,000 apart now, call that to their attention. Praise the parties for their progress and serve as cheerleader for the deal as they approach the goal line.
As you’re cheering the parties forward, ask them to imagine the benefits of resolution — less stress, more time for work and leisure activities, savings on attorneys’ fees, the satisfaction of resolving a contentious issue, and more restful sleep, to name a few.
Making the money something more than it is
Although almost everyone dismisses the importance of money with phrases like it’s just money or money can’t buy happiness, money is a huge hang-up for parties in negotiation. To prevent money from becoming a bigger issue than it needs to be, make it something more than just a number. Here are some techniques you could use:
Pull a dollar out of your wallet and pantomime what it’s not. You can’t eat it, use it as a poultice on a wound, take it out to the country for a picnic, or rely on its continuing value to provide for your old age sometime in 2035. It’s a symbol of value, not true value itself.
Take money out of your wallet, tell the plaintiff it represents the sum being offered, and ask whether he’s really ready to leave that money on the table.
If the amount of insurance money available is insufficient to make all injured parties whole, create an imaginary hat into which you ask each party to place his hand and withdraw the sum of money he believes he’s entitled to — physically depriving the other injured parties of the use of that money for their own injuries.
This kicks in each party’s own sense of fair play. It’s much harder to literally grab more than your own share out of the hands of another deserving person.
Have the litigants put a dollar bill into a cup in the middle of the table every time they notice that their response to the other side’s offer or counteroffer is driven by anger or fear. Tell them the dollar represents, say, the $250 per hour their attorney is charging them in fees or the dollar loss to their business for every hour they spend fighting the other side in the litigation.
How you explain the dollar they’re losing when they let their emotions drive their decision-making process doesn’t matter. It simply needs to reasonably relate to the dollar value of their case versus the expense of failing to settle it.
These are all ways of framing the parties’ dispute and its resolution as something beneficial, concrete, immediately available, within the parties’ control, satisfying, and (sometimes, if you’re lucky) even fair or just. Reframing doesn’t always resolve impasse, but it’s worth trying when other options have failed.