May 18, 2024

Mediation EI Enhancer #4:  Dual Tracking the Merits and Money 

Emotional intelligence is one of the most underrated and overlooked characteristics of a good mediator.  Negotiations are built on trust and emotional intelligence is the foundation of trust.  Yet so many mediators neglect emotional intelligence.  In this 5-part series, we’ll be exploring ways EI can enhance mediation. 

The fourth “EI Enhancer” in mediation (read #1, read #2, or read #3) is dual tracking discussions related to the merits and the money.   

The odds are that you’ve been at multiple mediations where the facts, evidence, and law are discussed for the first several hours of mediation before numbers are exchanged.  A common mediation schedule would start with talking about the case from 10 a.m. to noon or 1 p.m., then moving to the numbers in the afternoon, and then spending the rest of the day primarily negotiating the numbers.  I’m not sure who came up with this schedule or approach or why so many mediators gravitate towards it, but it is often ineffective.  More importantly, it lacks emotional intelligence.      

A mediation isn’t a three-act play.  Saving suspense or climax for the end isn’t going to lead to a happy ending.  Instead, fear, distrust, and anxiety often brew during the first few hours of mediation as the parties open fire on one another about the facts and law without any context or connection to actual resolution or settlement value.  The hope is presumably that once beaten and battered by the factual and legal negotiations the parties will approach the afternoon number session in a more reasonable fashion.  The reality, however, is that the morning cage match almost never leads to a pleasant afternoon discussion.  Instead, both sides get increasingly irritated, frustrated, and anxious about where things are headed throughout the morning and by the afternoon are ready to load their numbers gun with their highest and lowest numbers, respectively, to really teach the other side that they mean business.   

Unless submission is the desired outcome, there’s no emotional or relational value in starting the mediation with a two-plus hour blindfolded boxing match.  The emotional and relational damage done does not set the stage for fruitful negotiations in the afternoon.  There’s no real reason that monetary negotiations cannot proceed on dual tracks with factual and legal discussions.  Moreover, the parties often come into mediation with set numbers (often ridiculous ones) that they plan to reveal in the first round of numbers negotiations, regardless of anything they hear in the first half of mediation.  This in turn leads to what is often an emotional letdown in both rooms when, after having shared all their strongest arguments for several hours, they are met with a very high or low offer that isn’t connected to any of their advocacy.   

Combining legal and factual discussions with numbers negotiations is a safer alternative for maintaining healthy emotions throughout the day.   

Continue to Part 5 of the series...

M Resolution offers mediation for a broad range of employment disputes. Discover a new approach to mediation and a path to resolution by visiting


(916) 382-0383


Copyright © 2024 M Resolution. Nothing presented on this website constitutes a guarantee, warranty, or prediction regarding the outcome of your legal matter or dispute.

Privacy Policy | Terms of Use