I moved to San Francisco in the late ‘70’s, about the time Joe Montana and Bill Walsh got here. Of course I became a big ’49er fan. Bill Walsh, the legendary ’49er coach, prepared for game day by scripting the first 25 plays. The team practiced these during the week. On game day, Walsh might not use all of the plays, or he might change the order of the plays as the situation warranted, but he could always return to the list. Walsh explained, in Building a Champion:
“The whole thought behind ‘scripting’ was that we could make our decisions much more thoroughly and with more definition on Thursday or Friday than during a game, when all the tension, stress and emotion can make it extremely difficult to think clearly.”
The same holds true for mediations. Negative emotions often come up in mediations, sometimes from the parties, sometimes from the lawyers. Scripting your moves in advance can enhance your ability to stay in the moment and not get side-tracked from your settlement objectives.
In civil litigation mediation, if your objective is to settle the case, I recommend that your initial number be a verdict you could actually win at trial. Any number higher (or lower) than that ruins your credibility with the other side and can get the mediation off to a rocky start and lead to an impasse in mediation.
Then, look at the number you would like to settle the case at. In between is the space for you to make your negotiation moves. Consider 5-10 moves between the two numbers and write them down ahead of time.
When you walk into the mediation, you have your moves scripted. Like Bill Walsh, you can change them as circumstances dictate, but at least you’ve thought about them ahead of time in the quiet of your office, and you have thoughtfully prepared to make concessions to get the case settled.
