Credibility is the cornerstone for developing leverage, thus you must build it where you can, and retain it once you have it.

Sometimes you face a case that has everything going for the plaintiff and very little going for the defense.  Plaintiff will feel confident, sometimes to the point of intimidation.  You must show yourself to be equally confident and reveal no signs of being intimidated.  Your strength must come from a firm belief in trying the case to a good defense conclusion.

Credibility may be all you have, so build as much as possible.  Argue the merits of liability and damages where you can, without risking credibility.  If liability is dead against you, admit it.  If the injury is causally related and appropriately treated, admit it.  You can still argue such things as the conservative jurisdiction, the cost of taking the matter to trial, and other like arguments you have developed in your experience. 

Ultimately, it will come down to your opinion verses plaintiff’s opinion as to value.  You must make plaintiff believe that your evaluation is reasonable.  The only way you do that is with your ability to persuade, place doubt, and appear ready to try the case, if necessary.  The weight and effectiveness of those tools is proportional to your credibility.

Negotiators have an aversion to bidding against themselves, as it feels like you are giving something without getting something, and therefore seemingly losing ground.  If you have made a bidding error, however, don’t compound it by sticking to a principle of “never bidding against myself”, and risk losing even more ground.  Bidding errors may cost you something, but make sure it is not your credibility.

If your last move was too small and plaintiff called you on it by refusing to respond, admit it.  Simply advise plaintiff that you are withdrawing the last offer and substituting a new offer.  Don’t worry about appearing weak.  The mediator and plaintiff will likely have a great deal more respect for your integrity when you do this.  In any event, you must suffer what you must suffer for making the mistake of bidding too low, so take your lumps and move on.  If you handle it correctly, however, the damage will likely be insignificant, and most importantly you will have maintained, if not strengthened, your credibility.

Robert J. Conover

30 Years in Claims and Litigation Management

Independent Mediation Negotiator  &  Claims Representative