Still riffing off of Geoff Sharp’s Money Mediation #1 (where’s two big guy?)
I keep telling friends that the following formula is descriptive, not prescriptive, and yet, I don’t think I really know what I’m talking about.
The formula? In a pure distributive bargain, the case will settle half-way in between the first two reasonable offers.
The belief? I believe the key phrase here is “reasonable,” which is not surprising since the entire practice of the law seems to be precariously balanced atop that single word.
The observation? For the past three and one-half years of mediation practice I have performed this math equation (I know it’s only arithmetic) at the moment I believe the first two reasonable offers have been put on the table. Often I’ll go back to earlier offers — ones I considered unreasonable. I generally find that the arithmetic works there too. Add the offer and the counter. Divide by two.
I do sometimes say “you seem to be heading toward $X” when the parties are claiming impasse and I’m not buying it. They seem surprised that I somehow know what they’re thinking.
(twilight zone music here)
The Question. What’s the deal with this little formula, taught to me as holy writ by the Mediating the Litigated case people.
Is it some sort of golden mean or cognitive bias (aha! woke you up Michael Webster in Canada!)
Now that my step-son is no longer my legal assistant (sniff) but an IP litigator with one of the best IP firms in the country (Irell & Manella) he's a source!! Yesterday...By Victoria Pynchon