Insulating parties from reactive bargaining. Each side prepares two proposals grounded in their own risk analysis — not in reaction to the other side. Both are conveyed at the same time.
When to use it
Best at the opening, particularly where the parties are angry, the case is personal, or a first offer is likely to be received as an insult and stall the day before it starts.
How it works
- Build two proposals with the mediator. Both are based on the party’s own risk analysis rather than a reaction to the other side. The second moves further than the first but is not “final.” Each party also describes the position, interests, and analysis that justify their proposals.
- The mediator reviews all sides’ proposals before any are exchanged.
- Both proposals are conveyed to each party in private caucus.
- After the exchange, the Plaintiff is positioned to respond to the Defendant’s second proposal.
- Moving without a sufficient move in return. If a side felt the other’s movement was minimal, that can be communicated in the next response.
Why this helps
A significant source of stalled movement at the start of a negotiation is reacting to — or feeling insulted by — the other side’s proposal, instead of evaluating one’s own risk. Building both proposals before seeing what the other side does keeps each party anchored to their own analysis.
Receiving a proposal that is immediately followed by a further move is also valuable to the process. It lets a party outline something close to their best case, then follow it with compromise and a recognition of risk — in a single exchange, rather than over hours.
Example
- Plaintiff: first proposal $300,000, second proposal $225,000.
- Defendant: first proposal $120,000, second proposal $150,000.
The mediator reviews all proposals, then meets with the Defendant to convey the Plaintiff’s, and with the Plaintiff to convey the Defendant’s. The Plaintiff is then in position to respond to the Defendant’s $150,000.
Proposals go to the mediator first, then to the other side together.