Greetings!  

    We have all been there.  The mediator knocks on the door, comes in and says, "You're probably not going to like this..."  And sure enough when the ridiculously high demand (or the the absurdly low offer) gets communicated to you, you sure don't like it!

    The natural tendency then is to accuse the other side of "playing games" or "not being serious" or "not dealing in good faith"  (or maybe more the point being "&%$&# stupid"!)  In these situations, it is always tempting to instruct the mediator to "March back in there!" with your counter-response.  

     You may know deep down that your counter is not reasonable either, but seems justifiable in order to "send them a message." And that message usually is "Hey, here's what we think of your stinkin' last number!"

    Veteran mediator Andy Little suggests a different approach, and the two of us had the chance to discuss it a few weeks ago.  He models this style of negotiating on the seminal negotiations book "Getting to Yes" by Roger Fisher and William Ury, which encourages moving beyond the common "positional bargaining" of reacting primarily to what the other side does.  

Should a Plaintiff make an opening demand as part of an opening statement?

     Interestingly, Andy and I both noted how often we see litigants, when deciding an appropriate counter-offer or demand, base their "next number" as some type of reward for perceived good behavior or punishment for perceived bad behavior.  In contrast, Andy's approach in "interest-based negotiating" is to focus on the client's needs and goals, rather what the opposing party has done in the last round.

      At its most basic level, interest-based negotiating is conducted by incrementally moving toward your client's acceptable settlement range, rather than responding to the other side's current position. Whenever "sending a message" becomes necessary, it is done by the "radical" notion of using actual WORDS, rather than relying on numbers. 

     Granted, this style of negotiating is harder, because it definitely requires an honest assessment of the value of one's claim or strength of one's defense.   The development and determination of an general settlement range is also essential.  But once those strategic decisions are made, then a smart "interest-based" negotiator can skillfully take calculated steps toward an acceptable settlement, rather than "haphazardly hop-skotching" there.
     It may worth trying this approach during your next mediation.  I think you will find it a useful tool. 

     Anytime you want to "kick the tires" on this or any other gambits, ploys or strategies, just shoot me an email, give me a call or come for a visit. I'll pour the coffee.

     Good luck at your next mediation.