Considerations in Making Opening Demands at Mediation
By Brian McDonald
By the time a mediation has been set, you have usually had an opportunity to "size up" the other side and its representatives. By way of deposition and other discovery, you have identified and narrowed the issues. The mediator selection process has been completed, and it is time for you to file your mediation brief.
Assuming there has been no negotiation on financial matters or exchange of settlement figures, who makes the first proposal? Should you? If you do, some advance planning is necessary. Do you intend to start at a reasonable level? Then your ability to make concessions will be limited. What are the expectations of the other side? If you intend to make a more aggressive initial demand, then you will have more room to make concessions. If you put the first number out, what is your plan in this case for realizing the settlement you want?
