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The Silver Bullet
03/04/2015The Silver Bullet Method for Breaking an Impasse
by: Bob Stripling
The phrase "Silver Bullet" is used to describe a quick, effective solution to a difficult problem. It is derived from the folk belief that bullets made of silver were especially effective against werewolves, vampires, and other supernatural monsters. See, Common Errors in English Usage, Paul Brians. The phrase seems especially apropos when discussing how to avert an impasse in a difficult mediation.
When using the "Silver Bullet", the mediator tells both sides that they are close to an impasse, but asks the parties if they are willing to reveal their "bottom line" to the mediator (which will never be disclosed to the other side). If the parties agree, they typically write the number down and give it to the mediator. If the two numbers overlap, a settlement has been reached.
This is often an effective way to move each side towards their bottom line, while protecting the confidentiality of this number if the case doesn’t settle. If the numbers do not overlap, the mediator can declare an impasse, and neither side knows the other’s number.
Assuming that the numbers did not overlap, but were close to doing so, what should the mediator do? In that event he may choose to tell the parties that they are close to getting the case settled, and should try a little harder to reach an agreement. This is often enough to entice litigants to make one final move for the sake of resolution.
The more perplexing problem arises when the "Silver Bullet" results in the number submitted by the defense being greater than the plaintiff’s number. What should be done with the difference? For the sake of illustration, assume that the defendant wrote down $100,000.00 as his last move, but the plaintiff’s number was $80,000.00, leaving a $20,000.00 difference. Should the mediator split the difference, and declare the case settled at $90,000.00?
The answer to the question involves certain ethical concerns for the mediator, who unquestionably has the duty not to give false or misleading information to the parties. See Rule 10.310(c), Florida Rules for Certified and Court-Appointed Mediators. If the mediator splits the difference at $90,000.00, under the example, is he misleading the defendant by not telling him that the case could have been settled for $80,000.00? Conversely, is he also misleading the plaintiff by failing to disclose that the case could have been settled for $100,000.00? Perhaps the better approach might be to clearly define the rules in advance. If the parties are told that the case will be deemed settled at plaintiff’s number if the defense number is equal or greater than plaintiff’s, then no one has been misled. Alternatively, if the parties agree that the mediator has the right to split the difference, it would seemingly be ethical to declare the case settled at $90,000.00. The question was fully discussed in an Advisory Opinion submitted by the Mediator Advisory Committee of the Dispute Resolution Center of Florida. The opinion can be found at MEAC 2008-004.
The ""Silver Bullet"" method can be an effective way to break an impasse, as long as the rules are clearly defined and agreed upon by the parties in advance.