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Which Option Do You Prefer?

by Phyllis Pollack
March 2012

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

As I have mentioned in previous blogs, I mediate an awful lot of “lemon law” cases. Frequently, the issue is whether the defendant manufacturer will “repurchase” the vehicle, or pay the plaintiff consumer a “sufficient” amount of money to entice her to keep the car, also known as a “cash and keep” settlement.

Usually, the defendant manufacturer focuses on one or the other – either a “repurchase” or a “cash and keep” and not both. But, every once in awhile, the manufacturer will offer both options simultaneously. Usually – the “repurchase” option is at a discounted price to make it comparable to the “cash and keep” offer.

In response to the simultaneous multiple offers, the plaintiff usually starts to focus on one of them, leaving the other behind. With a few more rounds of negotiation, that one offer becomes refined and more times than not, leads to a resolution.

While I have often likened this multiple track negotiation to a fixed dinner in which one can choose from plan A or plan B, in actuality, this negotiation tactic has a name – “multiple equivalent simultaneous offers” or MESOs. According to a blog posted on January 3, 2012, by PON STAFF (i.e. Program On Negotiation at Harvard Law School), the use of MESOs is often successful “. . .because it takes both parties’ interests into account and, in the process, improves negotiators’ outcomes and satisfaction.” (Id.) Using MESOs thus “. . .increases the other side’s satisfaction while boosting your odds of coming to agreement. . . .” (Id.) In sum, it can prevent impasse!

The blog does note three cautionary warnings: First, because each offer, in essence, provides information about your own interests, make sure each offer is to your advantage. Each offer should be above your “bottom line” leaving you with wiggle room for further negotiation. Second, often (and I have had this happen in my mediations), the responding party will “cherry-pick”, taking the “best” from each offer to make a whole new counter-proposal. In response, you should not respond to the cherry-picked proposal, but rather come up with completely new alternative proposals that respond to the other party’s priorities (as implied by her “cherry-picked” proposal) and also meets your own goals. And third- do not give too many choices at the same time. Often, offering more than three options at one time is overwhelming if not confusing and so keep it to 2 or 3 options.

So, if the single option approach does not seem to be working, to the point that you are getting nowhere fast, switch tactics and offer two or three options at the same time, focusing on the issues that are most important to you. By this change in strategy, you may be able to learn which issues are important to the other party. Using such information, you can refine the proposals, hopefully to reach a resolution.

. . .Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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