to convey the first serious proposal. Many lawyers take it as a matter of faith that putting a number on the table before the other side does is a mistake. This might be true only when you do not have a good feel as to where the case should settle. If you do understand your case and the reasonable range within which it should settle, there is virtually no risk in going first. And there is a significant upside to going first. You can take control by anchoring the debate around a number you deem favorable. Experienced negotiators may think they are immune to
such anchoring, but the data show otherwise. The first serious number put on the table for damages is highly influential. So take command from the start. A serious offer is one for which you can provide a clear
rationale. If your analysis shows your best possible outcome in court is $175,000, starting at $500,000 or $2 million is only going to irritate the other side and prod them to respond in kind (i.e., by making a ridiculously low offer). No purpose is served by a demand that both you and the other side know is outside the bounds of what a jury might award.
B. Have a plan and stick to it The key to success in mediation (and unassisted negotiations)
is to imitate and respond, not react. That means thoughtfully planning each step along the way rather than simply reacting to what the other side does. As J. Anderson Little points out in Making Money Talk (highly recommended reading), offers contain both a text (the explicit message) and a subtext (an implied message about where the offeror is headed). You want both the text and subtext to lead toward your objective. For example, assume the best you can do in court is $300,000
and a reasonable settlement, in light of the liability issues and the high cost of medical experts to prove damages, would be $150,000. You justify your initial demand of $300,000 with medical evidence (X-rays and excerpts from medical reports) and your client’s personal account of the impact of the injury on her work and family life. Defense counsel responds with an offer of $10,000, justified only by the assertion: “that’s all I’m authorized to put on the table.” If you let your emotions rule your actions, you are likely to
either: (a) threaten to walk out of the mediation, or (b) counter aggressively with a number such as $299,500. The subtext of an offer that is nearly as high or even higher than your initial demand, which you know is at the very high end of reasonable, is “Okay tough guy, two can play this game.” Such a message may be emotionally satisfying, but it will only take you further away from your $150,000 goal. A far better approach is to calmly and coolly note that the defense has failed to justify its number with either facts or law and that the number is unrea- sonably low. Then put a number on the table—say $280,000 or $275,000--that shows you are willing to move toward a realistic settlement. Will defense counsel respond with a productive move? If they are serious about settling, yes. If they remain at an unrealistic
Winter 2009 Trial Reporter 27
level despite your good faith move, it will be readily apparent that they are not serious about trying to resolve the case. There will always be time to leave later if you wish. Give the process a chance to succeed.
C. Use the mediator A key component of mediation advocacy is knowing how to
use the mediator to advance your goals. The mediator’s job is
How effective the mediator will be in assisting defense counsel to put a number on the table depends to a significant extent on what information you give the mediator to work with.
to help you and defense counsel achieve a satisfactory settle- ment. Part of the job description of a mediator is to act as a go-between, conveying offers and counter-offers. But there is much more a mediator can do, particularly when an impasse develops. How effective the mediator will be in assisting defense coun-
sel to put a number on the table depends to a significant extent on what information you give the mediator to work with. As
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