Successful Mediation Without Splitting the Baby

Splitting the baby is a common but usually ineffective strategy for mediating a dispute. As a successful mediator, don’t let the parties simply decide to split the difference. Instead, come up with a creative solution that serves each party’s interests.

For example, if the complainant demands $125,000 in damages and the defendant offers $75,000 (a difference of $50,000), they agree to settle for $100,000, splitting the difference in half. Unfortunately, both parties often walk away dissatisfied because neither party’s interests have been served.

Worse, the word about you on the street will be, “She always just splits the baby in half.” Lawyers and clients alike are averse to resolutions that simply split the baby, for much the same reason that King Solomon originally suggested that two mothers fighting over parentage of an infant do so.

Splitting the baby is unprincipled and suggests that one party or the other doesn’t truly care about the item being negotiated. If you believe you’re entitled to recover $100,000 from your adversary, why would anyone, particularly a so-called neutral mediator, ask you to take 50 percent of what you’re owed? It feels random, without principle, unjust.

If you have the urge to split the baby, make sure you’ve exhausted all other avenues. Ask yourself whether you have

  • Made a concerted effort to ascertain each party’s interests (needs, desires, preferences, priorities, attitudes about risk, and the probability of future events) and to include them in the conversation.

  • Helped the parties conduct a cost-benefit analysis, assigning probabilities to their likelihood of victory at each stage of the litigation or other dispute-resolution process and to the likely range of damages or recompense if they prevail at all those stages.

  • Helped the parties articulate principled bases for their claims, as well as for their defenses to the other party’s claims.

  • Helped the parties reality-test the version of events upon which their claim or defense rests. To reality-test a party’s version of events, ask diagnostic and follow-up questions, and restate his answers in your own words to ensure that you understand what he said and that he can listen more objectively to what he’s actually saying.

  • Encouraged the parties to discuss their dispute directly with each other to identify hidden value, absent stakeholders, and hidden constraints and interests. In other words, have you engaged the parties in interest-based negotiation? Have you probed for hidden interests, absent stakeholders, and secret constraints?

  • Assisted the parties in dealing with emotional obstacles to resolution such as the desire for revenge, the need to restore “face,” the pressure to grieve the loss, and any other strong emotion that would prevent the parties from brainstorming a pragmatic resolution of a difficult dispute.

Mediators recommend 50 percent compromises when they run out of good ideas. By engaging in one or more of the activities in the preceding list, you can help the parties arrive at more positive and lasting resolutions, such as the following:

  • When you make the effort to ascertain and discuss party interests, you may

    • Uncover what new or different information one party needs in order to accept a proposal that’s already on the table.

    • Discover the source of a party’s fear that some adverse consequence will follow resolution, so the parties can find a way to allay that fear.

    • Find out that a party needs a certain amount of money today and is willing to accept partial payment with a promise to pay additional monies over time.

    • Come to know that the parties have different priorities, both of which can be served at the same time.

  • When you help the parties conduct a cost-benefit analysis, they often see the wisdom of paying more or accepting less than they were prepared to based on the dawning realization that prevailing in litigation or another dispute-resolution venue won’t be as easy as they had believed.

  • When you help the parties articulate a principled basis for their claims or defenses, their negotiation partner is often more willing to work toward a solution that satisfies the announced principle (fairness, for example) because it appeals to him as well.

  • When you help the parties reality-test their version of events, you help them see how another person may view the fairness of their negotiation partner’s requests or defenses.

  • When the parties overcome their resistance to discussing potential solutions to their mutual problems, they often find hidden resources that permit the resolution of their dispute in a way that satisfies both of their interests.

  • When you assist the parties in dealing with emotional obstacles to resolution, they’re better able to recognize the needs and desires of their opponent as worthy. They may stop treating their opponent as an adversary, acknowledge their own fallibility, and recognize that much of their conflict rests on miscommunications rather than evil motives, all of which frees them up to work together to brainstorm mutually acceptable solutions.

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