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The Opening Demand

by Michael P. Carbone
July 2003 Michael P. Carbone
“They want how much? I think we’re just wasting our time here. Their case isn't worth anything close to that.”

How many times have I heard those words when sitting down with the defense lawyer and his client in the first caucus? And why do plaintiff’s counsel always start with such a large opening demand? The reality is that the opening demand is often at least three times what plaintiff’s counsel thinks the case may actually be worth. Part of the explanation, of course, is that any good negotiator wants to leave himself plenty of room to bargain and so will always "anchor high." Or counsel may be waiting for the other side to make the first move. How often have mediators heard plaintiff’s counsel say that “I won’t bargain against myself."

Just as importantly, plaintiff’s counsel never wants the client to think that he or she started out by asking for too little. At the end of the day, when the defense is offering $200,000 counsel does not want the client to think that the offer would have been $400,000 if only the opening demand had been for $2,000,000 instead of $1,000,000. And mediators, for much the same reason, will regularly communicate high opening demands even when they know that the defense may become discouraged if not outraged. The mediator who balks at communicating a plaintiff’s opening demand risks alienating that party and causing him to question the mediator’s neutrality.

Rather than walking out the defense may respond with an extremely low offer. This tactic risks provoking a reaction that is the flip side of what the defense may have displayed. But again the defense lawyer and the mediator may be reluctant to try to dissuade the client, at least at this initial stage, from responding to the plaintiff in kind. Eventually, the mediator will have to urge one of the parties to “make the first move” so that serious negotiations can begin. Bear in mind that making the first move should not be considered a sign of weakness. Simply tell the mediator to convey to the other side that you are making a significant move with the expectation that they will do the same. You may be surprised at the reaction.

Biography


MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields.   His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.  

Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases.  In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.  

He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association.  He is also listed on the mediation and discovery facilitation panels of several Superior Courts. 

He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.

Michael is a frequent author and speaker on alternative dispute resolution issues.  He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.



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Website: www.mpcdisputeresolution.com

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