Mediation Message No. 14

Who Goes First?

Message no. 13 discussed the issues to consider in deciding what an opening offer or demand should consist of. This message looks at which side should make that first move.

Typically, plaintiffs and defendants appear to be comfortable with the former making a demand and the latter responding to it. Both sides, though, should consider the advantages and disadvantages of sticking to or deviating from this order rather than maintaining the status quo.

Going first allows that party to set the table for ensuing negotiations. To some extent, every ensuing movement and negotiation is a reflection of that first move. “Zone of agreement,” “reasonable,” “credible” or “insulting” offers should result in comparable counter-offers. On the other hand, there may be some resistance to open in one of the first three ranges for fear that the counter-offer will, nonetheless, be an insulting one, thereby committing the first party too early in the process to a position that it only wanted to make, if at all, later on. That concern is exaggerated, however, because the first party can simply reply with a minimal or modest second move, signaling both its reaction to the insulting offer and a belief in the strength of its own case.

Finally, under this first consideration, there appears to be little reason for a party not to want to make the opening offer if, going into the mediation, it has already decided how to respond, regardless of what the opponent shall first ask for.

Having the other party open allows the responsive side to evaluate the initial move. What does it say about that party’s evaluation of its case, including the facts and the law? Is the offer realistic or completely out of the ballpark? What kind of message is being sent? And what type of message should be sent in response? Going second thus has its own considerable advantages.

Consequently, who goes first or second should not be set in stone; instead, as in who kicks off in a football game, it should reflect the strengths and weaknesses of both sides on that particular day and whether starting off on offense or defense is a plus or minus.

Copyright, Michael D. Marcus, May 2004

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