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Mediation Negotiation: The Defense’s Opening Offer (assuming resolution is your goal)

September 6, 2015

With the Defense’s more-frequent attendance at mediation and their decidedly more aggressive use of mediation as a valuable litigation tactic, the Defense “side” is, frankly, usually simply “better” at their mediation negotiation technique than most Plaintiff’s representatives.

Among other Defense advantages, because of their relatively uniform “homework” the Defense always has a relatively firm idea of where they intend to begin their offers, where they will likely end their offers and the manner and pace of their negotiation in between as planned to achieve a particular goal at THAT* mediation.

But, as it still takes both sides to resolve a matter, respectfully, in my opinion, to improve their mediation resolution successes, the Defense’s usual negotiation technique at mediation must consider change in those matters in which they wish resolution at THAT* mediation.

(*Note:  Many Plaintiff’s representatives still do not grasp the common Defense technique to USE mediation as simply another valuable tool of discovery and for advance planning for some other future resolution attempt, including another mediation.  However, this article is directed to those Defendants who intend to use their mediation for a good-faith effort at THAT resolution.)

Here is one easy way for the Defense to consider a change:

Step One:  Consider using alternative practices for the Defense’s initial offer in response to the Plaintiff’s initial demand/offer.

Many have written on the necessity of a well-planned “opening demand/offer” for any Plaintiff in any negotiation, including mediation. See, “Mediation Tip: Putting the For Sale Price on Your Horse”, January 31, 2011; “Mediation Negotiation Technique: Create a Negotiation Plan”, October 16, 2013.

However, I strongly suggest that this same “opening offer” by any Defendant has as much to do with the final success of the total negotiation as the Plaintiff’s opening “demand”.

Too frequently, because Defense representatives are simply jaded by the “usual/predictable” negotiation techniques of too many Plaintiffs, including their often excessive initial position/”demand”, that their own responsive negotiation technique becomes also all too common and also too predictable.

Plaintiff “sides”, however, often become just as jaded to predictable Defense mediation technique.  And, particularly if they routinely deal with similar Defendants or Defendant’s representatives.   And REALLY particularly if there is never any change to the “standard” routine of that representative!

Solution?  Both sides must change their “routine”!  Become unpredictable; Tailor your approach to each mediation.

The most common (read: predictable) Defense opening offer (even with a fair opening demand) is the “low ball”; an offer so low as to be known not to ever be acceptable!

While such an offer may be occasionally useful in those cases in which the Plaintiff’s initial demand is equally absurdly high, it is equally offensive to the Plaintiff’s representatives for its predictability of being a known unacceptable!  It may even be the REASON for the absurdly high demand in the first place, anticipating the absurdly low initial offer.

Worse, it presents the usual lay-Plaintiff with their critical first impression of the Defendant as “UNREASONABLE”.

It must always be remembered that it is the client, the lay-Plaintiff, who must ultimately decide if the final offer made is reasonable.  That lay-Plaintiff may never have been involved with any prior negotiation.  Beginning with something so unreasonable as to be insulting is NOT a good way to gain the interest of the opposition in TRYING to settle.


Suggestion #1:  Make a really reasonable offer FIRST!  Make an offer that at least COULD be accepted, even if, obviously, it will not be your best offer.

Simple “mediator math” should tell any defendant the point at which any lay-plaintiff will actually be in receipt of any net dollars.  What will be the reception to an offer that does not permit some recovery to the lay-Plaintiff?

I know, I know.  “A higher than they expect initial offer will increase their (present) end-expectations.”  “They need to know we are prepared to try the case.” “Such an initial offer does not leave me anywhere to go (if they do not negotiate equally fairly?).” Etc., Etc.

Observation:  If you really know where you ultimately and finally intend to go, within reason, why do you care about their expectations?  Are you really going to pay more than you believe is appropriate to the case?

And, should the return response NOT be “fair” in return, you can always return to an equally ridiculous response as you next offer to send the same messages thought to have been missed by your initial generous attempt.

But, if I suspect, a fair offer will be met by an equally fair return offer, you are now well on the way to an actual resolution and at a far faster pace.

Suggestion #2:  Open with a bracket of your expected negotiation range.

Nothing sets the tone of YOUR expectations better than simply telling the opposition of your intended range of acceptable negotiation.

Better than a low-ball offer, suggesting bracket of “fair” negotiation signals the range of your intent WITHOUT  your making the initial offer that simply could never be accepted.  And, implicit in the offer are numbers that sound higher without ever being within your intention to offer.

Best of all, a bracket offer actually offers nothing, if not accepted! And most often will be responded to by an alternative bracket proposed in return.  But, even if not, regardless of the Plaintiff’s response, your message of your conception of fairness has already been sent!

And, even though any return bracket will likely be higher, the total information gained is such a valuable exchange, it saves hours to the usual low ball incremental offers/response-created brackets usually experienced.

However, many times, if the proposed bracket is really fair, it just might be accepted.    If so, think of the time thus gained for the more critical final moves of negotiation.

These are only two “easy” alternative initial offers for the Defense to consider. ( A third tool?, See, “Mediation Negotiation:  Plan a Soft Landing”, November 20, 2013.)

However, if you are a “Defense” representative, at the least consider changing your “business as usual”  or routine approach in your next mediation and see what such a really “small” change in your technique can do to increase your overall success in mediation.

It will work!   Repeatedly, I have seen a minimal technique change such as simply a more generous opening offer literally guarantee ultimate mediation success.

But success requires the parties first change their old attitudes and beliefs toward each other and their conception of the “usual” processes of mediation.  And, maybe, ask your Mediator for their suggestions?

Give it a try!

Dan, from Vero Beach, Florida.

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