“Split the Baby” Negotiations

The phrase “split the baby” has its roots in Hebrew lore, in the story recorded at 1 Kings 3:16-18 of two mothers claiming before King Solomon that each was the real mother of an infant son.  The wise king ordered that the baby be split in two, with one-half of the baby going to each mother.  The first mother’s position was to accept the king’s judgment as fair, and the second’s was to give the baby to the first.  Whereupon the king determined that the infant son obviously belonged to the second, as evidenced by her willingness to sacrifice her own self-interest for the good of the child, as a true mother would.  The wise king thus deployed a clever approach to discover the veracity of one party over the other.

Legal disputes are often resolved with a “split the baby” negotiation approach, having a very different meaning than the old King Solomon story.  In this context, if a dispute (typically already reduced to a money issue) is within a reasonable range of reaching a solution but both parties are still fairly well dug into their positions, one or the other might suggest that they split the difference, agreeing at a near exact middle ground, without either party making a concession on the validity of their position, merely to get the dispute resolved to avoid incurring further costs of negotiating or litigating the dispute.  As mentioned, this final move is typically practical only if (1) the dispute is reduced to a money issue, and (2) the parties are already within a reasonable range of reaching a negotiated solution.  However, it is rarely a useful approach to resolving wide differences between disputing parties—this is a final solution approach, and not an opening position approach.

Mediation is often viewed as typically leading to a split the baby resolution.  This view holds that the mediator’s job is little more than persuading the disputing parties to make step-by-step concessions until they are close enough for the mediator to get each party to make a final concession matched by the other party’s equivalent or near-equivalent final concession.  Disputing parties will often refuse to participate in mediation, on fear that the final outcome will merely consist of the mediator pressuring them into a spit the baby concession.

A split the baby final concession can indeed be an effective tool to bridge a small divide at the end of a nearly effective attempt to negotiate a mutually agreed resolution.  However, effective negotiations should be driven by the practicalities of each party’s strength of position and negotiating leverage.  An effective mediator will lead the parties through an analysis of their positions and their true interests at stake, without an eye toward simply reaching a split the baby solution.  The mediator may even assist the parties in imagining innovative solutions, i.e. a “win-win” approach.  This gives the mediator more influence to help the parties make the hard decisions needed to resolve a difficult dispute, and makes the final solution more credible if it can be found.