In three decades as a trial lawyer and twelve years as a mediator, I have never seen the plaintiff accept the opening offer at mediation, and I have never seen the defendant pay the opening demand. While it’s rare for the plaintiff to accept the initial offer or the defendant to meet the opening demand, the significance of these numbers should not be underestimated.

Even though opening numbers are just a starting point, they often set the tone for the entire process. When opening demands and offers are extreme, there can be negative consequences. Tempers can flare, patience can evaporate, and parties may be tempted to walk away from the negotiating table. Extreme offers or demands can erode any good will or trust between the parties or their lawyers. At best, extreme opening numbers will make the mediation take longer. At worst, they make the mediation a futile exercise.

Although no one expects their counterpart to accept their first move, each lawyer should have a rational basis for his or her opening move. When a lawyer makes an opening offer or demand that is outside the realm of achievable trial results, the prospects for achieving a settlement decline. If a plaintiff’s best day at trial is a verdict of $1 million, the defendant will not take a $10 million demand seriously and may assume there is no prospect of settlement. Similarly, if the defendant offers a number that is well below its best day in court, its credibility takes a hit.

Surprisingly, parties also have worse outcomes when they start with a number near to what they hope will be the final settlement. When a party’s opening number is too close to their walk away number, they may not have sufficient room to respond if their counterpart only bargains in small increments. Parties need to leave room to negotiate and to respond to the other side. Negotiation is reciprocal. The give and take process of mediation should be embraced, not short-circuited.

Parties have the best mediation outcomes when they begin with a number that is close to the verdict amount they hope to receive if everything goes well at trial.  Visualize a bell curve representing all potential trial outcomes and their probabilities, with lower verdicts on the left side and higher verdicts on the right side of the “x” axis. The highest probability outcomes sit in the middle of the curve. The plaintiff’s optimal opening demand leans toward the right side of the bell curve, while the defendant’s sweet spot resides on the left side.

When the parties begin negotiations towards the edges of the bell curve, they have room to move even if they learn their case is better or worse than they thought. And, they leave room to respond to the other side’s proposals.  By keeping their opening numbers within the range of “best day” trial results, the parties don’t insult the intelligence of their opponent (even if the opponent grumbles about the numbers).

In addition to the strategies above, lawyers also improve mediation outcomes when they prepare their clients for the realities of mediation. Setting expectations is crucial – clients should anticipate that the other party’s opening move will often appear unreasonable. The opening numbers signify the beginning, not the conclusion, of the negotiation journey. Clients must be prepared for the likelihood of rejection and understand the importance of allowing the mediation process to unfold patiently. Building trust with clients through effective communication about the give-and-take of mediation can go a long way in achieving successful outcomes.