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Splitting the Difference May Not Be the Best Outcome

October 4, 2017  | 
Splitting the Difference May Not Be the Best Outcome by Clare Piro

{3:18 minutes to read} In my past life advocating for clients in an adversarial process, getting to the point of splitting the difference was the last settlement proposal, and timing was everything. If your first offer is close to what you really want, there will be little room left to split the difference if your adversary low-balls their demand. For example, if you are looking for $5000 and ask for $5000 in support and your spouse offers $2000, you are going to lose in the “split the difference” scenario. So this practice encourages unrealistic offers and counteroffers, resulting in annoyance and insults (“How dare you!”) and prolonged negotiation.

More importantly and disappointingly, splitting the difference probably doesn’t meet the interests of either client, since it is merely a mathematical formula based upon meaningless offers to begin with. But it is a way that parties can settle, and to paraphrase something that’s repeated time and again in litigation: “a good settlement is when both parties leave unhappy.” Or, in other words, both parties lose.

So, is having two unhappy clients, neither of whose interests were met, a good outcome? I think mediation does much better.

In an interest-based discussion of the clients’ needs, there is the opportunity to avoid both the win/lose and lose/lose scenarios. We ask clients why something is important to them and why they want what they want, in an effort to try to identify their underlying interest. This leads not only to mutual understanding but also opens up many possibilities as to how their interests can be met.

Is this a long and sometimes unpleasant process? Yes, and I truly understand that even in mediation clients reach a point where they just want it over. The temptation to just divide the difference can be overwhelming, especially when the difference is not so great.

But before clients go that route, I think it makes sense to at least go to the next step and talk about what that will mean to each of them:

  • If it’s a support issue, I revise the budgets to see how the split-the-difference figure actually works for both of them. If it doesn’t, then we need to have future discussions.
  • If it’s a conflict over something, such as the date of the month when support will be paid, I ask why the particular date each wants is important. We then discuss their respective cash flows and any savings they have to help them bridge the time needed to pay expenses.

Results of this thoughtful process usually outweigh splitting the difference, to the benefit of both clients.

Clare Piro Attorney and Mediator

Attorney & Mediator
500 Mamaroneck Avenue | Suite 320
Harrison, NY 10528
Tel: 914.946.0848

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