Nationally Known Mediator Uses Baseball Metaphor for Mutuality

Rodney Max, a principal of the Upchurch Watson White & Max Mediation Group, recently spoke about the art of negotiation before an audience of attorneys and business executives in Birmingham, Ala. He also shared writings on the topic with the group and recently has updated them for the firm's resources page. To schedule a mediation with Mr. Max, please call his case manager, Heather Lariscy, at 800-264-2622 or visit our online scheduling page.

If parties to a mediation fairly and reasonably negotiate toward a reasonable settlement range (RSR), they will create a "reasonable ballpark." Continuing on this theme, home plate exists somewhere within that ballpark, and the mediator must help them round third and slide into home.

Sometimes the parties can negotiate toward home plate. Sometimes the parties must confidentially meet with the mediator to locate home plate. Sometimes the mediator must help the parties find home plate through a mediator's proposal.

The healthiest way to determine home plate is for the parties to negotiate toward it. The good faith negotiating that brings the parties to the ballpark can, likewise, bring them home. The key to this negotiation is mutuality, and the give and take of negotiation creates that sense of mutuality. Black's Law Dictionary defines it as "reciprocation; interchange. An act by each of two parties; and acting in return." Where parties act with mutuality, they are able to not only interchange and reciprocate, but also resolve. They can "trot home."

Where parties have vastly different RSRs, have negotiated with a sense of adversarialism, or have other barriers blocking the identification of home plate, an effective mediator can help the parties locate it. The mediator does this through private discussions or through a mediator's proposal. Victory is achieved when the parties slide into the same home base. The trust and impartiality of a committed mediator promotes resolution when mutuality fails among the parties.

In the end, the parties have negotiated their way from two separate and opposing RSRs to one ballpark. Within this ballpark, the parties have found home plate. Finality is achieved not because it has been imposed, but rather because it has been mutually agreed upon by the parties themselves. The humanity of the justice system has been achieved, through mediation, and this win-win resolution constitutes the truest equities among the parties.

So, let’s play ball! Work to build trust, appreciate the mutuality of the process, and ultimately common ground can be achieved.