Don’t get upset over an outrageous opening demand.  Keep in mind that plaintiff is at a disadvantage by having to go first. 

The most prevalent response from the defense is an equally outrageous opening offer.  Sometimes this is an appropriate response, but not always.  Consider all your options, which are: you can Walk, Ignore, Refuse, or Equal.  Most importantly, your response must be consistent with the open, reasonable, and credible image you have thus far projected.

Your third option is to refuse to make an opening offer until plaintiff makes a reasonable demand.  This is a rather bold move and should not be done flippantly.  It can be used with good success, however, so when your instincts tell you there is little risk of plaintiff walking, don’t be afraid to try it.

Don’t exercise this option simply because plaintiff is outrageously high.  If you have every indication she will come down considerably and will ultimately negotiate in good faith, it is wiser to make a low opening offer rather than challenge the opening demand.  You want to exercise this option only when you feel plaintiff will resist making sizable jumps downward, and you have no choice but to insist the negotiations start in a much more reasonable range.

You will get strong resistance from the mediator (and possibly defense counsel), so be prepared to confidently hold your position.  The mediator will argue that you can’t expect plaintiff to bid against herself.  My customary reply is, “Don’t worry, she’s not.  Tell her we don’t consider her as yet having made an opening demand.”  You have to exude a lot of confidence to get away with this, but when you do, you can get great results, as you often get a much more cooperative plaintiff to negotiate with.

Don’t threaten to walk if plaintiff doesn’t comply.  The emphasis here is not your taking a hard line, it is that negotiations will go better if plaintiff starts her bidding at a more appropriate range.  You want to keep your options open; you don’t want negotiations halted before they begin.  If plaintiff refuses to adjust her demand consider all your options before responding, even calling for the reconvening of the joint session to discuss a reasonable jury range.  If Plaintiff hears your opinion and argument directly and witnesses the conviction in your position, it may have a greater impact than simply conveying your thoughts through the mediator.

Robert J. Conover

30 Years in Claims and Litigation Management

Independent Mediation Negotiator  &  Claims Representative