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The Cart before the Horse

Date: November 10, 2012 Posted by Comments Off on The Cart before the Horse

Putting the cart before the horse – not so daft after all!

At an opening session of a mediation a few weeks ago, one side presented the other with two pieces of paper – settlement option one and settlement option two. What is this heresy, I thought! No argy bargy? No explanation of why complete victory was a dead cert? Just the deal. In fact a pair of deals. As mad as a box of frogs, I thought. But I was wrong. The settlement options anticipated a continuing relationship and were received, by and large, as well balanced. All except the number of course! But in a quantitative sense, because any settlement would, given the nature of the dispute and anticipated on-going relationship, inevitably be multi-faceted and complicated, we were 90% there. This meant that discussion about the all-important remaining 10% (the number), could be much more focused and positive than otherwise might have been the case.

Sometimes it can make sense to share a draft settlement agreement early on. If the parties are not that far apart on the bulk of the terms, discussion about the rest of the deal will be conducted in a much more forward looking frame of mind.