In most mediations, the real issue is dollars and cents. During the mediation process, offers will be exchanged, often with a statement of one party’s legal position as a justification for why the other party should accept the offer. As the day goes on, the numbers get closer and the parties generally become weary of the process. I often hear the phrase, “let’s just split the difference”. If the sides are very close, that may work. However, if the money situation is tight, splitting the difference may actually result in “Splitting the Split”. For example, if the parties are at $10,000 and $5000, respectively, and the paying party offers to split the difference at $7500, the other party may counter at $8750 (the half way point between $10,000 and $7,500) which would likely defeat the paying party’s intention to meet half way. At that point in time, a settlement at $7,500 is unlikely. A better approach is to inch toward the $7500 figure. In the alternative, the mediator can propose to both sides (via a Mediator’s Proposal), that they settle at $7,500. This may be a more effective way to get to the ultimate number.
Rod B. Neuman is a Florida Supreme Court Certified Circuit Court Mediator Certified Mediator (also admitted in the United States District Court, Middle District of Florida) and offers these observations based upon his experiences mediating cases throughout the State of Florida.