Page 28 - Pierce County Lawyer - March April 2025

The Mediation Dance – PART II
By Michelle Luna
"Those move easiest who have learned to dance."
– Alexander Pope
In the last issue we focused on the first part of the dance,
asking the party to mediation, making the first move,
and slowing the dance down. In this article we will focus
on how to get to ZOPA, the importance of precise moves,
demystifying brackets, how to finish the dance and when to
walk off the floor.
The Zone of Possible
Agreement
Much of the
frustration during
mediation is because it feels
like it takes forever to get to ZOPA.
Intransigence can build when parties feel like the other side
is not moving off the insult zone. However, during the slow
dance, the mediator should be moving both parties towards
that zone. If there is no ZOPA, there will be no settlement.
Sometimes this occurs because a party comes too early to
mediation, or because a client is stuck on a particular number.
But with some reality checking and patience, parties should
reach this zone, and they may only be able to reach it after
reconsidering what their “bottom line,” is. True negotiations
begin once the parties reach ZOPA.
To Bracket or Not to Bracket – If X then Y.
Brackets – you either love them or hate them. Some parties
may announce at the beginning, “we will not entertain any
brackets.” So when should brackets come into play, and why
may they be helpful? First, realize that during the dance you
are always in a bracket whether you realize it or not. When the
Plaintiff starts at $1 million and the Defendant counters with
$50,000, then the bracket is $50,000 - $1 million. Here are the
top things to consider with brackets:
1. They are helpful to move off an impasse and get to
2. 3. 4. ZOPA.
They cannot be used too soon (don’t rush the dance).
It’s okay to start negotiating what the bracket is.
Don’t assume a midpoint for settlement when
negotiating brackets. If you know that the bracket
is acceptable, but there’s no way you will get to the
middle, communicate that to the mediator.
Using Precise Numbers and Why
Defense attorneys and insurance companies like to say, “we are
dealing with real money, and they are dealing with monopoly
money.” But of course for both parties it’s real money, so show
them. Instead of making a demand of $100,000, towards the
end move it to real money, based on real valuation. Here’s how
and why:
1. 2. 3. A precise number signals you have more knowledge
about the value of the good being negotiated.
Offers attached with a “why” have a 30% higher
chance of being taken.
It might look like this, “We’ve calculated outstanding
liens, our costs, specials, and the total we need to
walk out the door is “102,314.35,” rather than around
$100,000.
Instead of breaking down everything in your mediation packet,
consider summarizing it neatly during mediation and allowing
the mediator to present it. If the mediator understands it and
can articulate it, it will sound different than your numbers
on a page in a glossy packet. You want the mediator to make
a strong proposal in the other room. Having the correct and
precise numbers makes a difference.
CR 2A – don’t leave the dance floor without it
Mediation sessions are exhausting, and parties and mediators
may be in a rush to leave the room once agreement is reached.
Agreements that are done right are binding in court. Here’s
what not to forget:
1. 2. 3. 4. Put everything on the table before you finalize
agreement. Mediations blow up when you fail to
negotiate key terms like confidentiality. If it is a
contract case, you may be renegotiating the contract
entirely, so put those details in there.
Do include all key terms and note clearly that the
agreement is binding and enforceable.
Sometimes you may need to mediate final terms.
Don’t forget who the check is made out to!
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