Breaking negotiation impasse: the Zipper

If you’ve been in a mediation recently, one party (or the mediator) has likely proposed a bracket to break an impasse or simply move things along. But here’s the thing: some people hate brackets and refuse to use them, or worse, they insist on using brackets in an idiosyncratic way that wrongfoots the other side and causes mayhem. So what are other ways to move along a stalled mediation?

More and more, I’ve been proposing something called a “zipper.” It’s useful when both sides have made small moves, but no one is willing to make a big jump. Consider a typical scenario when the plaintiff is moving down from an initial demand in $10 increments and the defendant is moving up in increments of $5 (add how many zeros to the end of those numbers that you like). Slow progress is being made, but neither side is anywhere close to a realistic settlement and not likely to get there anytime soon. That’s where a “zipper,” or linked moves, can help move things along. In this scenario, the mediator can propose that instead of making another $10 move with a $5 response, both sides will make 5 moves (or whatever number the parties can stomach) at the same ratio all at once (e.g., the plaintiff above moves $50, while the defendant comes up $25).

If either side objects, you can go back to negotiation as usual. But you’d be surprised at how many litigants are up for this strategy which allows the mediation to progress towards a reasonable settlement zone much faster.