Overcoming Impasse at Mediation: Bargaining with Brackets

Imagine this familiar mediation scenario: Plaintiff makes an initial demand of $2 million. Defendant counters with $50,000, to which plaintiff responds by moving to $1.6 million. Defendant then moves to $95,000, and plaintiff responds with $1.4 million. It is now 3 p.m. After six hours of negotiating, the parties are tired and frustrated and appear to be at an impasse.

Plaintiff thinks it has shown flexibility and a willingness to compromise, and is disappointed that defendant will not put “real money” on the table. Defendant, however, sees the negotiation quite differently. It thinks the $2 million demand was “completely unrealistic,” and that plaintiff’s movement to $1.4 million, which is still “way too high,” shows only that plaintiff is “unwilling to accept reality.” Defendant, after much prodding from the mediator, reluctantly agrees to move to $125,000 but says that, if plaintiff does not respond with a “legitimate number,” the mediation is over. Upon hearing defendant’s last move, plaintiff tells the mediator it is time to call it quits.