At every stage in conflict resolution, parties face an array of choices, but they don’t always recognize them.

Teddy Snyder

Can we offer the opposing party more ways to get to an acceptable conclusion? Think of ways to enhance the proposed monetary exchange with other items of value. That might be a resignation or an apology. Parties might agree to a justifiable re-characterization of payment. A claimant might avoid an unfavorable tax consequence or build a retirement account. In some circumstances, a recharacterization could make the defendant's payment tax-deductible when it otherwise would not have been.

Can we find options that would bring us to resolution more efficiently? That could range from an agreement to cooperate in the discovery process to participation in early neutral evaluation.

Does it make sense to spend more money that may or may not produce a more favorable outcome? Before ramping up confrontation, prepare a budget for the proposed steps. How likely is it that an improved result will justify the attendant expense and delay?

Create an architecture of choices

People want to have choices. Your job is to manage the negotiation to present options. Choice architecture nudges people toward choices that are in their best interest. Some parties may be inexperienced or poorly informed. A choice architect will make it easier for those parties to make a good choice.

When parties have the ability to choose from alternatives that have been fashioned to meet their needs, they are most likely to take one of those options. Regardless of which side of a conflict you are on, you need to consider how the choices can fulfill all parties’ interests. (Interests are what people actually need, typically not the negotiating position they initially presented.)

You are more likely to get to resolution if you can present your offer as a group of choices. While that could be as simple as itemizing exactly what will happen if the parties don’t reach resolution, an array of more positive choices would be more attractive.

Some parties are so focused on their own position that they are unable to see the range of choices available to each party. As mediator, my job often includes pointing out those choices and asking parties to consider and balance them.

Attorney Teddy Snyder mediates workers' compensation cases throughout California. She can be contacted through snydermediations.com.