Beyond the Standard Settlement Conference

Consider Customizing Your Commercial Dispute Mediation

April 2025 By Andrew Shoemaker

This article explains an alternative approach to traditional zero-sum bargaining and describes how and when customizing the mediation process can facilitate exploration of more efficient settlements for the benefit of all parties.

article citation

In a mediation dispute resolution process, parties to the conflict work with a neutral third party to attempt to negotiate a voluntary solution. Negotiation provides parties the opportunity to avoid future litigation costs, control risks and uncertainties, and generate outcomes outside of the limited remedies available through arbitration and the court system. Parties can tailor the mediation process to optimize the potential for the most efficient settlement. When the dispute largely involves a zero-sum competition over money with minimal potential for a future relationship between the parties—circumstances common in certain types of personal injury disputes—the ideal mediation process may resemble a traditional settlement conference.1 When the dispute is more multidimensional with respect to underlying interests and potential relationships—a situation common in commercial disputes—a customized mediation process can help counsel and their clients better explore optimal outcomes involving mutual gains and future relationships.2

Customization inherently requires design and planning. However, a recent study surveying more than 1,000 mediators across eight states confirms that limited attention is being given to planning, preparing, and tailoring the mediation process.3 For cases that could benefit from customization, including many types of business disputes, opportunities for mutual gain are being overlooked. Rather than creating the best result for the client, missed opportunities can result in unnecessary concessions, inefficient settlements, or impasse.

This article provides background on different negotiation approaches and how they drive certain behaviors and results. With this foundation, it then identifies factors relevant to selecting and planning a tailored negotiation approach and explores recent data suggesting that pre-mediation planning and preparation necessary for customization is deficient. It concludes with some recommendations on when and how to more proactively select a mediator and plan a mediation process to optimize opportunities for efficient settlements in commercial disputes.

Distributive and Integrative Bargaining Theory

The two primary bargaining types are distributive and integrative.4 Distributive bargaining is also known as zero-sum or win-lose bargaining.5 Integrative bargaining is also known as interest-based, problem-solving, or win-win bargaining.6 A basic understanding of these two approaches is important to a discussion of mediation process and outcomes.7

Distributive Bargaining Is a Zero-Sum Strategy

Distributive bargaining involves the division of a fixed resource, where each gain for one party is at the expense of the other.8 As a simple example, assume that parties A and B will be awarded $100 to divide between them only if they can negotiate and reach agreement on how to do so. This division of money is a zero-sum negotiation. If party A takes $60, only $40 is left for party B.

Such distributive bargaining negotiations incentivize strategic opportunism and disincentivize the exchange of information.9 In another example, assume that the plaintiff files a claim for $100,000 in a personal injury case and then attempts to negotiate a resolution of the dispute. For a plaintiff to accept a settlement offer, the offer must exceed the plaintiff’s reservation price or bottom line—the least amount the plaintiff would accept in a negotiated agreement to settle the dispute.10 The primary input into that reservation price is the amount the plaintiff could expect to achieve from their Best Alternative to a Negotiated Agreement (BATNA).11 Typically, the BATNA in a litigated case is the alternative of proceeding to trial.12 Calculating the plaintiff’s BATNA involves risk-weighting the plaintiff’s expected outcome from the trial and factoring in transaction costs such as attorney fees and trial expenses.13 In determining a reservation price, the plaintiff will discount or enhance the BATNA to take into account additional factors outside of the anticipated trial outcome, such as the plaintiff’s risk tolerance, the emotional toll of trial, and the importance of litigating on principle.14 Table 1 illustrates these formulas for the plaintiff.

TABLE 1 

In this example, assume further that the plaintiff calculates a reservation price of $60,000, which means that the plaintiff would accept $60,000 or more to settle; anything less, and the plaintiff would prefer to proceed to a trial. Let’s also say that the defendant, after considering similar factors, calculates that the defendant’s reservation price—the most the defendant would pay in settlement to avoid a trial—is $70,000.15 The parties should be able to negotiate a resolution to this case somewhere between $60,000 and $70,000—the zone of possible agreement or bargaining zone between the plaintiff’s and the defendant’s reservation prices.16 This $10,000 overlap between the reservation prices of each party is a surplus amount over which the parties will compete.17 The plaintiff would prefer to capture the $10,000 surplus by negotiating to receive a payment at the defendant’s $70,000 reservation price.18 Conversely, the defendant would prefer to claim that surplus by negotiating to pay an amount at the plaintiff’s $60,000 reservation price.

Knowledge of an opponent’s reservation price is perhaps the most important piece of strategic information for a negotiator, as it allows the negotiator to make an offer at or near the opponent’s bottom line and therefore capture all or most of the surplus.19 For this reason, the parties will engage in strategic behaviors aimed at discovering their opponent’s reservation price while hiding and distorting their own.20 Every positional offer made by a party provides a data point for discerning the offeror’s reservation price. Starting offers, midpoints, and the size of concessions will be analyzed by the negotiators.21 Until a party reaches its bottom line and stops negotiating, competing offers between the parties follow a linear progression of concessions toward a number somewhere between the offers.22

During the negotiation, parties will continue to adjust their BATNA and reservation price calculations (and their perceptions of the calculations of the opposing party) as they modify their assessment of their probable outcomes at trial.23 With the objective of influencing these calculations and perceptions, the parties will engage in positional arguments and other conduct to persuade their opponents (often through the mediator as an intermediary) about the strengths of the factual and legal positions supporting their own case and the weaknesses of the opposing case.24 Many parties also will expect a mediator to make evaluative comments and engage in reality testing during the mediation. These strategies are designed to assist parties in recalibrating their respective BATNAs25 and to cause to the parties to consider their doomsday scenarios, often referred to as the Worst Alternative to Negotiated Agreement (WATNA).26

Each side in a zero-sum negotiation also may engage in a variety of adversarial negotiating tactics to influence their opponent and their respective reservation prices. It is common for the parties to engage in bluffing and puffery about their resolve and the strength of their positions.27 Many will engage in anchoring with extreme positions, a tactic that has proven to be highly effective under certain circumstances.28 Such practices are so ingrained in negotiation that Colo. RPC 4.1, which prohibits an attorney from knowingly making a false statement of material fact or law to a third person, includes a comment clarifying that “[e]stimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim” are not ordinarily considered statements of fact.29

In addition, parties may engage in other behaviors to intimidate or wear down the other party, such as:

• making only small concessions until late in the day;30
• demanding that the negotiation occur on someone’s home turf;31
• outnumbering the other side;32
• setting preconditions to negotiations or offers;33
• taking seemingly irrational positions;34
• threatening to leave the bargaining table;35 and
• changing positions after an agreement previously was reached.36

Each side responds in kind to such hard bargaining tactics.37

While the ensuing cycle of adversarial bargaining may result in a positive outcome for one party at the expense of another, it also risks the negotiations breaking down into impasse even in situations where an undiscovered zone of possible agreement might exist.38 As Benjamin Franklin once wrote, “The worst outcome is when, by overreaching greed, no bargain is struck, and a trade that could have been advantageous to both parties does not come off at all.”39

Many litigators will recognize the distributive bargaining approach and related conduct as commonly used for mediation and consistent with the adversarial approach inherent in litigation processes, including traditional settlement conferences conducted by a court.

Integrative Bargaining Is a Mutual Gains Strategy

While distributive bargaining focuses on claiming as much value as possible in a zero-sum contest, integrative bargaining focuses on developing solutions that create additional value so that the parties “do better as a result of a negotiation than what was available before the negotiation.”40 Consider the commonly used hypothetical in which two siblings are fighting over an orange.41 A parent offers to cut the orange in half so that the siblings can share, but each sibling argues for more than half. What if, however, sibling A’s underlying interest in the orange is in the peel for use as zest in a recipe, and sibling B’s interest is in the pulp for juice? Sibling A would be better off taking all of the peel and sibling B all of the pulp. By creatively deconstructing the orange and distributing the peel and the pulp based on the underlying interests, siblings A and B each win by ending up with entire orange’s worth of what they prefer. Splitting the orange in half—a natural distributive inclination to compromise at the midpoint42—is less efficient than disaggregating the orange to effectively double the distributive “pie” and portion out the peel and pulp based on preferences.

Integrative agreements can generate mutual gains and expand the pie through various creative techniques. The orange example illustrates one such technique, trading across different preferences between the parties and exploiting those differences for mutual gain.43 Sibling A conceded or traded on an issue of lower priority to sibling A but of higher priority to sibling B (e.g., orange pulp) in exchange for issues of higher priority to sibling A and lower priority to sibling B (e.g., orange peel). Another technique involves expanding the size or quality of the existing resource being allocated through a future relationship with the opposing party or a third party, turning a zero-sum distribution into a positive-sum negotiation of mutually expanded gains.44 Other integrative solutions include using contingent agreements to allocate different risk or performance preferences, or identifying means for a performing party to decrease the cost of providing the other party with its objective.45

Developing such integrative solutions requires information exchange concerning the underlying interests, preferences, and resources available to the parties.46 The efficient result in the orange example could only occur upon the siblings learning about their different relative valuations regarding the components of the orange. Integrative bargaining therefore becomes an exercise in creative problem-solving to meet the preferences of the parties.47 The problem is typically solved through developing and exchanging information about underlying interests and then brainstorming options for synergistically converting overlapping and differing interests into mutual gains.48 Due to these gains, the parties are in a better position than they would be in a distributive negotiation involving the status quo (i.e., one without the mutual gains).49

Integrative and distributive bargaining approaches are not mutually exclusive in a negotiation process. For example, the expanded pie developed through integrative bargaining may require distributive bargaining to allocate the mutual gains, although the parties share the incentive to reach agreement in order to realize such newly discovered gains. The inherent tension between when to engage in collaborative behavior for expanding value and when to compete for claiming value is often referred to as the “negotiator’s dilemma.”50 This tension must be managed to incentivize the sharing of information necessary to identify joint gains (without that information, the joint gains may never be discovered) for integrative bargaining while minimizing the risk for opportunistic exploitation in distributive bargaining.

Relevant Factors for Planning the Optimal Orientation for a Mediation Session

As a framework for planning the initial negotiation approach for a mediation session—distributive or integrative—negotiators should consider the singular or multidimensional nature of the resource that is the subject of the dispute, the potential for synergistic interests and preferences, and the possibility of a continued relationship. The planning also must take into consideration that integrative bargaining is unlikely to arise organically out of a typical negotiation because a well-established cognitive barrier causes negotiating parties to default to a zero-sum bargaining mindset. This mindset is resistant to disruption and leads to a distributive bargaining behavior cycle: (1) the negotiating parties engage in distributive conduct, (2) there is a feedback loop generating more distributive bargaining conduct, and (3) the parties fail to explore and test opportunities for optimal integrative solutions.

Distributive Orientation—Disputes Between Strangers Over a Single Scarce Resource

When a dispute is limited predominately to competing over a single scarce resource in a single transaction between strangers, the negotiation is zero-sum in nature. As a practical matter, traffic injury cases are some of the most common civil cases filed in state and federal courts51 and often concern such a contest between strangers over the single resource of money.52 Unless the defendant is in the business of providing services to injured persons, money is likely to be the single currency that the defendant can trade to address the plaintiff’s injuries—typically the plaintiff’s most significant underlying interest. In such settlement negotiations, a dollar gained by the plaintiff is a dollar lost by the defendant; although some marginal integrative currency may exist in apologies, the timing of payments, and confidentiality terms.53

The lack of an existing relationship or potential for a gain-generating future relationship is another relevant factor, as the parties to traffic injury disputes typically are strangers. “One-shot” transactions have little potential for a value-enhancing relationship going forward.54 In such situations, there is little cause for concern that the competitive and adversarial tactics incentivized by the distributive bargaining process will damage a relationship that would otherwise provide efficiencies or mutual value going forward.55 Similarly, there is little need for concern that significant integrative opportunities exist that might be overlooked due to zero-sum bargaining behavior such as the failure to share underlying interests.

Integrative Orientation—Disputes Involving Multidimensional Interests or Relationships

The potential for integrative agreements is high when the disputes concern multidimensional interests and there is the potential for a future relationship between the parties.56 Commerce, by its very nature, involves the exchange of goods and services,57 and therefore business disputes provide fertile ground for integrative bargaining through trades and relationships. Parties to business transactions often share overlapping interests and goals that may allow mutual gain. Such joint interests could include additional business transactions, market development, legislative and regulatory issues, environmental concerns, social justice outcomes, fair and efficient procedures for resolving disputes, certainty, and risk management, among many others.58

Like the two siblings and the orange, different preferences or interests between business parties also create opportunities for innovative value-expanding trades across those preferences. Table 2 provides examples of potential differences between commercial parties where opportunities might be found for synergistic trades across these differences.59

TABLE 2

Parties can extract value from these differences through trades, license agreements, ventures, contingent agreements, hedges, insurance, and so on.60 However, unless the parties exchange information about their underlying interests and needs—behavior that is disincentivized in distributive bargaining—they may never identify and recognize such integrative opportunities.

Generating these mutual gains often requires some sort of trading relationship between the parties. In addition to economic motivations, a continued relationship might be unavoidable due to family ties, involvement in the same industry, reliance on a common supply or distribution chain, ownership of intellectual property, or existing ownership and partnership structures. When the parties cannot avoid future interaction, improving the relationship can create mutual value by addressing needs and interests beyond simply monetary returns and short-term profits.61 However, certain conduct prevalent in zero-sum bargaining, such as hard bargaining behavior, can damage these relationships and prevent the realization of relationship-based gains.

Default “Fixed-Pie” Perceptions Pose a Significant Cognitive Barrier to Integrative Bargaining

Studies show that most negotiators enter negotiations with a zero-sum mindset and default to distributive bargaining behavior.62 This mental state results from one of many biases and perceptions that occur when the brain engages in mental shortcuts to efficiently make quick and automatic decisions.63 Popularized by Nobel Prize winner Daniel Kahneman in his best-selling book Thinking, Fast and Slow, behavioral economics literature contrasts automatic decision-making—necessary for survival and countless daily decisions—with more effortful, deliberative, and analytical thinking.64 While the mental shortcuts used in automatic thinking allow the brain to reach snap decisions based on limited data, a variety of stereotypes, biases, emotions, and perceptions contribute to erroneous mental processing of such data, resulting in irrational judgments.65 Common biases that systematically distort rational decision-making include anchoring effects (overreliance on the first piece of information offered),66 loss aversion (greater aversion to loss than gain of the equivalent amount),67 and confirmation bias (pursuit and assimilation of information partial to original hypothesis), along with many others.68 One bias in particular—“fixed-pie” perception or zero-sum bias—bears directly on the negotiation approach (distributive or integrative) taken by the parties.69

It is well-documented that the zero-sum bias affects most participants in a negotiation.70 It causes parties to assume that the counterparty has the same priorities and diametrically opposed interests such that one party’s gain is another’s loss.71 Therefore, parties fail to exchange and process information in a manner necessary to recognize integrative potential.72 The fixed-pie perception also is resistant to disruption73 and is often maintained throughout the negotiation.74 Negotiators in a zero-sum/fixed-pie mindset default to distributive and positional bargaining and associated conduct to gain a competitive advantage.75 This distributive bargaining conduct is then reciprocated in a reactive dynamic that further inhibits information exchange and creativity in identifying integrative opportunities.76

Additional factors, such as time pressure and complexity of the negotiation task, can exacerbate the fixed-pie perception.77 Time pressure can be a useful tool in distributive bargaining, as it forces parties to move past bluffing and making small concessions.78 However, it is counterproductive for facilitating integrative bargaining, as time pressure causes negotiators to rely on mental shortcuts like the fixed-pie perception.79 In these situations, negotiators close their mind, lack the “motivation to process information in a systematic and deliberate way,” and are likely to “rely on unfounded assumptions about the other’s intent and the other’s preferences and priorities.”80 Additionally, when negotiators become overwhelmed with the complexity of the negotiating task, they attempt to simplify the negotiation by falling back to a zero-sum mindset.81 Ironically, however, integrative potential is highest in negotiations that become more complex through expanded interests, broadened issues in dispute, and multiple parties.82

Research demonstrates that integrative bargaining is not likely to occur organically in a mediation absent preparation, planning, and intentionality,83 as distributive and integrative bargaining “involve different, mutually exclusive mindsets.”84 Strategies to disrupt the zero-sum mindset can include separating the integrative/creative stages from the distributive/positional phases,85 engaging in de-biasing techniques such as perspective taking,86 and managing time pressures.87 Otherwise, if the parties default to positional bargaining, the negotiation is unlikely to include testing and creatively exploring integrative possibilities. As a result, optimal outcomes can be overlooked and unnecessary comprises made.

Many Mediations Lack the Planning Necessary for Customization

Although litigants have flexibility to tailor their mediation to the specific needs of their cases, not many are taking advantage of the opportunity to do so. A recent study reported by Roselle Wissler and Art Hinshaw in the Cardozo Journal of Conflict Resolution (Wissler/Hinshaw study) published findings of responses by over 1,000 mediators across eight states and four regions and concluded the following (among other things):

[M]ediators often do not begin the first formal mediation session informed about the disputants or the dispute . . . . This is contrary to conventional mediation thinking and advice that stresses the importance of preparing for mediation. In addition, the lack of pre-session information negatively impacts the ability of mediators and mediation participants to customize the mediation process to the needs of the individual case, which is considered to be one of mediation’s advantages.88

The study included extensive inquiry about procedures conducted, information gathered, timing of communications, and other practices of mediators in pre-session communications, segregating the results between civil and family cases. The study found that “[p]re-session communications were not held in roughly one-third of civil cases.”89 Before the first day of the mediation, only 57% of the mediations in civil matters explored options for structuring the opening session,90 only 32% explored options for structuring the rest of the mediation,91 and only 33% discussed developing the agenda.92 Out of this same pool, only 50% explored the parties’ interests, 52% explored the parties’ goals for the mediation, and 18% explored new settlement proposals.93

While mediators “generally were more likely to explore the parties’ interests and goals for the mediation when the parties were present,”94 neither of the parties were present during the vast majority (three-fourths) of the pre-sessions held before the first day of the mediation of civil cases.95 Notably, mediators with a legal background were less likely “to explore the parties’ interests, the parties’ goals for the mediation, and, marginally, the obstacles to settlement.”96 This latter finding may suggest that lawyers more naturally default to an adversarial distributive bargaining approach that is focused on the limited remedial toolbox provided by the legal system rather than more creative outside-the-box solutions.97 Presumably, fixed-pie perceptions also play a role. Some of this may begin to change in the not too distant future, as the July 2028 NextGen bar exam will test negotiation and dispute resolution as one of seven foundational lawyering skills.98 Law schools are adjusting curricula to address this new focus, including increased offerings in negotiation and dispute resolution.99

Finally, the Wissler/Hinshaw study found that “the mediator’s usual personal practice with regard to holding pre-session communications” was more “strongly related” to whether pre-session communications occurred than to “the features of the individual case.”100 Put differently, mediators follow their standard practices, and they aren’t proactively tailoring mediations. One conclusion to draw from this is that if attorneys and their clients desire customized services, they need to actively seek out and demand them when appropriate.

Recommendations for Customizing a Mediation to Explore Integrative Solutions in a Business Dispute

To plan a customized mediation to meaningfully explore integrative solutions, counsel should take the following steps: explore the potential for integrative opportunities with the client; select a mediator who has the experience and willingness to plan and conduct such a process; and proactively engage in pre-mediation session planning with the mediator to disrupt zero-sum assumptions and test integrative potential prior to distributive bargaining.

Pre-Mediation Planning With the Client to Determine Whether Customization Makes Sense

Identifying the potential for integrative solutions begins with exploring the interests of the client. Any pre-mediation planning between a lawyer and client should include the analysis of certain issues that are within the traditional expertise of attorneys—elements of the legal claims, availability of admissible evidence necessary to prove the claims, remedies available based on the evidence and the law, and risks and costs of litigation, all of which play into the BATNA calculation and influence the client’s determination of a reservation price. Additionally, however, analyzing the potential for value-expanding solutions requires tapping into the client’s expertise regarding broader underlying interests beyond simply those asserted in the legal claims and limited remedies available through the court system. Expansive inquiry includes understanding:

• all reasons underlying the dispute;
• the client’s short- and long-term goals and their underlying rationales;
• the client’s short- and long-term fears and concerns and their underlying rationales;
• whether and how the opposing and other parties might affect the client’s interests through and outside of the litigation;
• whether and how the client might benefit from a good faith and trusting business relationship with the opposing party; and
• whether any parties outside the litigation may have an interest in any of these issues.

The objective is to broaden the playing field, making it more multidimensional in terms of interests or preferences (and even additional parties) that could be addressed and satisfied through agreement. This contrasts with the typical discussion of one-dimensional positions that require linear concessions between the parties to achieve a compromise settlement.

Counsel also should brainstorm with the client about the potential interests of the opposing party, unconstrained by current beliefs that narrow thinking. Rather than assume that the preferences of opposing parties are the same as the client’s and that their underlying interests are diametrically opposed, creatively consider scenarios in which the opposing party’s interests and preferences may be complementary and could provide opportunities for value expansion. Table 2 can be a useful starting point. Many business executives will be familiar with such creative and expansive thinking, including brainstorming, since a variety of innovative techniques are common in corporate culture, taught in business schools, and written about in business publications.101 This will most likely require suspending current beliefs, including the attribution of opposing party motives. This exercise is necessarily speculative, as counsel does not have the opportunity to explore the mind of the opposing party.

In hard-fought cases with hard feelings, generating a free flow of ideas could include working with consultants and colleagues (all under the umbrella of privilege) to objectively consider such issues and take the perspective of the other side. It is worth noting that, while related, perspective taking is different from empathy. Perspective taking is considering the viewpoint, interests, and concerns of others, while empathy is identifying with their feelings.102 Both can be useful in negotiation, and both can be done strategically, but perspective taking in particular can help remove cognitive barriers such as anchoring effects and zero-sum bias.103 Perspective taking may generate breakthrough thinking, leading to integrative possibilities to be tested in mediation. Research shows that negotiators who engage in perspective taking “achieve higher individual outcomes than do negotiators who tend to focus on their own perspective.”104 Perspective taking can also provide valuable insights relevant to litigation strategy in the event that the mediation is unsuccessful.

If, in comparing the client’s interests and the potential interests of the opposing party, it appears that integrative potential exists, then counsel should consider the next steps of selecting a mediator who can customize and plan a process that facilitates integrative inquiry.

Selecting a Mediator

A mediator suitable for helping to design and facilitate a customized process must, first and foremost, be willing to proactively plan and prepare for something different than a traditional settlement conference. Unfortunately, the Wissler/Hinshaw survey found planning and preparation to be lacking in many mediations.105 Additionally, the study also found that many mediators tend to plan and prepare based on their personal practices rather than the unique features of a case.106 Therefore, counsel desiring customization should conduct diligence into a potential mediator’s reputation for preparation and customary practices. For example, if a mediator’s process is limited to requiring that counsel sign up for a date on a mediator’s calendar, submit a confidential mediation statement, and appear for a mediation session, the parties should expect an off-the-shelf mediation consistent with that mediator’s regular practice. Mediators who have a robust practice operating under such a model may have no interest in customizing their process. It helps to know that in advance.

Counsel should also consider the substantive and process skills required for a mediator to facilitate the type of bargaining process desired. To aid in this analysis, and building off of this article’s earlier analysis of negotiation approaches, table 3 lists general tasks expected of mediators, while table 4 lists tasks common to facilitating distributive bargaining, and those common to facilitating integrative bargaining.

TABLE 3 

 TABLE 4

Litigation counsel are well-accustomed to selecting mediators for distributive bargaining, as that is the default negotiation style. To facilitate an integrative approach, a mediator will need more versatile experience beyond zero-sum bargaining. As set forth in tables 3 and 4, such a mediator will need to design an environment to allow the parties to break through the default fixed-pie barrier and associated behaviors and initially adopt a creative problem-solving mindset. Experience with the fundamentals of creative processes—including encouraging quantity of ideals, withholding initial criticism, and welcoming radical ideas—is useful.107 Experience helping parties package options and engage in complex trades based on interests, using techniques such as multiple simultaneous offers and single text negotiation, is also helpful. As for substantive skills, experience in business, corporate governance, contingent contracts, intellectual property, and the associated industry may assist the parties in creatively exploring interests and options. This is in addition to the substantive experience typically necessary for reality testing and evaluating litigation outcomes (e.g., familiarity with court verdict statistics, litigation processes, and specialized areas of the law).

Planning the Process

With the mediator selected and engaged, the next step is planning. Some mediators may have established procedures for learning about the dispute and working with counsel and the parties to design the most effective mediation session(s). If not, consider proactively reaching out to have a phone call with the mediator to discuss the nature of the dispute, the potential for integrative bargaining, and any other needs for customization beyond the traditional settlement conference model. This will assist the mediator in early planning, including tailoring requests for specific information and mediation statements from the outset. It also allows the mediator time to communicate with all sides to the dispute, make pre-session recommendations, and obtain any agreements necessary to incorporate customized processes to facilitate exploration of integrative alternatives. In such communications with the mediator, counsel should invoke CRS § 13-22-307 to assert confidentiality and protection from voluntary or compulsory disclosure.108 Note, however, that communications with a federal judicial officer for purposes of a “settlement conference” may not have the benefit of such protections.109

Some of the most critical planning relates to disrupting the zero-sum bias and encouraging innovative thinking. Otherwise, the default mindset and distributive behavior cycle discourage exchanging and processing information necessary to identify integrative opportunities. It follows that parties should first try to identify these opportunities and fully define and expand the pie prior to distributing it. At a minimum, the integrative and distributive stages should be separated into different sessions. These sessions will have different objectives and will require different agendas, framing, and potentially even settings.

Time management is important in any mediation, but the potential for multiple sessions and the tendency of time pressure to exacerbate zero-sum thinking makes time planning all the more important in exploring integrative opportunities. Rather than a single mediation session with a traditional end-of-day deadline designed to pressure the parties to reach resolution, the process can be engineered into multiple sessions designed to permit the mental separation necessary to switch between creative and adversarial mindsets. Virtual meeting technology can make multiple meetings—particularly those involving any planned caucus sessions—more cost-effective and convenient for the parties.

Ultimately, the mediator tasks in table 3 outline the general steps of the integrative process: explore and identify interests, creatively generate options, package options, evaluate options against alternatives, engage in any necessary distributive bargaining, and reach agreement. How to carry out these steps is beyond the scope of this article. However, proactive planning ensures the exploration of integrative potential as the dynamic process of the negotiation dance unfolds.

Conclusion

Not every case has integrative opportunities, but commercial cases in particular have high potential. Overlooking integrative opportunities can lead to concessions and unsatisfactory results, and counsel seeking to achieve the best result for the client should test the potential for integrative solutions through a customized mediation process. Creating a negotiating environment to disrupt standard distributive bargaining processes and facilitate integrative bargaining requires that counsel proactively plan with both the client and the mediator. Doing so has the potential to achieve a better result for a client than a suboptimal settlement or trial, and, at a minimum, ensure that no such opportunities were overlooked.

---

Explore This Issue

When Rights Collide

As I See It

By Heidi Metroz

Richard Drury Irvin and Terrance Robert Kelly

In Memoriam

Civility Is Performative

Mentoring Matters

By J. Ryann Peyton

Related Topics

Notes