That being said, I would rather be included on the list than not, and once again, I am on the list. To my knowledge there are only two mediators in Dallas who have made the list every time: me (of course!), and my friend Mary Burdin. I am pleased to have been selected, I am grateful to anyone who voted for me, and I congratulate Mary for her well-deserved distinction.

How often have you heard, or stated, a variation of this negotiation mantra? From the day I was born, it seems, I have been told that a critical advantage in negotiation is achieved by making the other side make the first move. But recent negotiation studies are raising a serious question about this time-honored assumption.

Anchoring
Psychologists call it “anchoring”. In one study, a group of experienced real estate agents were shown a house, and handed an MLS listing. The listings were identical, except each contained a different “list price”, which is essentially a “first offer”. After the tour the agents were asked to answer four questions: (1) an appropriate list price for the house; (2) an estimate of the appraisal value; (3) a reasonable amount for a buyer to pay for the house; and (4) the lowest amount the seller should accept.

In every response the agents who received the higher list prices thought the house was worth more. And when asked if the list price they had been provided had influenced their answers, 80 percent said, “not at all”.

I Am Not Making This Up
One academic puts it this way: “Our minds tend to give disproportionate weight to the first information we receive when we are required to make decisions”. Students of negotiation professor Charles Craver are asked, in their role of defense counsel on a personal injury claim, how much their client will have to pay to settle the claim. The only variable in the hypothetical is that half the class is told that the opening demand is $60,000; the other half is told $30,000. The students receiving the higher demand almost always conclude that more money will be required to settle, often concluding that more than $30,000 will be required.

How many mediations have you been to where the claimant makes a demand of two million dollars, and the insurance company defendant retaliates with an offer of $5,000 or $10,000? What if the insurer, instead of insisting on the Plaintiff going first, made an opening offer of $30,000, thus anchoring the negotiation? Would the Plaintiff still start at two million? I think not. What do you think?

The principal issue debated is whether ADR in these cases can be mandated, or should be strictly voluntary.

I wonder how far in the minority among my professional neutral colleagues I may be, but I actually think “voluntary” is the way to go. I have become concerned in recent years about abuses of mediation referral by some courts, who have become, in my view, overly dependent on ADR as a mechanism for docket control. Too often mediation has become not the efficient win-win alternative to disputing, but an added layer of delay and expense for the parties.

Ten to fifteen years ago a healthy percentage (90%?) of my mediations were mediations of pending lawsuits, and a healthy percentage (50%?) of those mediations were court-ordered.

Today about 50% of my cases are “pre-suit”, and the percentage of cases I mediate because the parties are satisfying a court-ordered obligation is around 10%.

I am close to the point where I could not receive another court-ordered mediation and it would not make a difference in my practice. I may get to a point in five years where 100% of my mediations are pre-suit (or at least pre-arbitration).

Mediation is not going away, but the market for ADR services is evolving—more contractual, more voluntary, and less court-annexed. Mediation works best when it is voluntary.

It will be interesting to see in which direction the Texas Supreme Court decides to go.

What if the agreement breaks down over the terms of the more elaborate settlement documents that everyone assumed would not be a problem”? Fortunately the Houston (14th) Court of Appeals, in a recent decision, helps us with this perplexing issue! In Border Gateway, LLC v. Gomez the parties obligated themselves, in an MSA, to “enter into a formal settlement agreement within ten business days”. In a trial over an alleged breach of the MSA, it was argued that the failure of this condition precedent rendered the “agreement” non-binding on the parties. Citing established precedent, as well as the Restatement (2nd) of Contracts, the Court opined, “the fact that the parties intend for an informal agreement to be reduced to a more formal writing will not necessarily prevent present, binding obligations from arising”. The party challenging the MSA could not establish that the MSA manifested an intent to not be bound.

Practice tip? An expression in an MSA of “the parties intend to be bound by this agreement, notwithstanding the fact that more formal settlement documents are contemplated”, should go a long way in bolstering the enforceability of the agreement. Conversely, if you have any reservations about the “more formal settlement documents” to follow, the MSA should clearly state that the MSA is non-binding (in which circumstance why even sign the MSA?).

Horrible News. “Scandal to End Paterno Career”. How unbelievably sad. What a horrible, horrible story. Every aspect of it.

Good news or bad news, depending on one’s perspective. “Ohio Repeals Limits on Union Bargaining: Public workers score big win against GOP; Mississippi defeats abortion ban”. Just when you thought right wing extremists in this country pretty much had a lock on everything, in Mississippi voters rejected an anti-abortion ballot initiative. In Mississippi. And Ohio voters overturned a new law that had weakened pubic employee unions. Amazing.

And FABULOUS NEWS. “Earth Safe After Big Asteroid Hurtles By”. We just missed getting hit by an asteroid THE SIZE OF AN AIRCRAFT CARRIER! Did everybody know about this threat but me? Whew!

So if you are gloomy about the economy, or the Penn State scandal, or the Republican presidential debates, just remember: the asteroid missed us!

Thank you for your interest, and should you ever have any questions about mediation, arbitration, or the world of hybrid dispute resolution options, I will look forward to hearing from you.

Will

A thought, however, about Mr. Pujols. I think if I were pitching to him, I would close my eyes, spin around a few times on the mound, and wet my pants (all in an effort to distract him), and then with my eyes still closed, I would throw the ball as hard as I could and see if I could get him to swing at a pitch thrown into center field, the left field stands, etc.

It might work. When I did this in college I found that it cut down on the number of home runs allowed.