Page 23 - Pierce County Lawyer - January February 2025

In distributive bargaining,
the mediator focuses on
the positions of the parties
and plays a zero-sum game.
Possible outcomes include
one party getting the whole
orange, the orange being
divided in half, or flipping
a coin to see who will
receive the whole orange.
However, in integrative
bargaining, the mediator
explores the underlying
interests.
After time spent in the
mediation dance, the
mediator learns that one
person wants the orange to
make juice, while the other
person wants the orange
for its zest to make orange muffins. The parties agree that one
can juice the orange and afterwards the other party can have
the peel for its zest. This results in a win-win.
So, what does the position versus interest look like in the
context of litigation? Take an employment matter. Employee
says, “you are sexist and that’s why you didn’t promote me.”
Employer says, “I am not sexist – how dare you accuse me of
that.” During mediation, if the parties focus on the positions,
impasse is surely to result. However, if the mediator is able to
explore interests, the conversation might go like this.
Employee, “I really want to retire from the company,
and I need just two more years here.”
Employer, “No one else knows her job, and I could use a
couple of years to cross-train someone in her position.”
Now the mediator has something to work with! But below we
will examine why exploring the interest can never occur in the
first dance move - and why timing is everything.
Who does the opening move and where
should the move be?
There are some advantages to giving the opening number. This
can become the “anchor number,” which means parties always
find themselves bargaining off that number. Don’t get hung
up on “outbidding,” yourself. If your opening demand or offer
was in the insult zone, then coming to the table with a different
number makes sense.
Questions to ask yourself when deciding where to start:
• Is there room for concessions considering your target
and your bottom line.
• Is your opening, target, and bottom line reasonably
justifiable based upon available data.
• How will the other party receive (e.g. is this in the insult
zone).
How many moves are there in a
mediation dance?
Back to the middle school dance. Imagine if someone asks you
to dance and within one spin, they were trying to kiss you.
You would likely pull back and say, “hold on, wayyyy too fast.”
(well, maybe you would in 1955). It’s the same with mediation.
You cannot throw your final move on the table because you
have an afternoon hearing you’d like to get to. Psychology
shows that in negotiations, you need a minimum of three to
eight moves before you can reach potential settlement.
It takes time to get to the ZOPA spot (Zone of Possible
Agreement). A mediator’s job, is at times, to slow the dance
down. You may have heard, “hold on, I don’t think you want to
go there yet. Can you give me a different number?”
Trust the process.
Slow the dance down.
Hopefully in the end, you can walk off the dance floor at
the same time. In the next issue we will explore more social
sciences in mediation and some practical tips for how to make
sure the settlement sticks.
References:
ABA Handbook on Mediation,
Third Edition (2016).
Mediating the Litigated Case,
Pepperdine Caruso School of Law.
Michelle Luna has practiced in Pierce County for over 25
years. Her mediation practice focuses on Complex Personal
Injury, Police Use of Force, Government Liability, Medical
Malpractice, Employment and Personal Injury. She also serves
as the Chief Civil Deputy for Pierce County. Email Michelle@
lunamediation.com
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