For reasons that remain a mystery, one or both sides frequently wait until the day of mediation to share certain information and/or present their opening demand or offer to the other side — often creating a problem at the very outset of the mediation that was otherwise completely avoidable. There are steps each side can take to prevent the “wait” problem from occurring in the first place.
Plaintiff:
If you represent plaintiff, make sure you provide an opening demand (along with all of your supporting documentation) at least three weeks before the scheduled mediation. Insurance carriers usually conduct “roundtables” several days and sometimes several weeks before the mediation. Information which has not been provided cannot be considered. In other words, don’t wait!
If you obtain additional information after submitting your original demand packet, send it to the other side immediately. Do everything within your power to avoid surprises at mediation.
If you can’t decide what opening demand to make, reach out to your mediator to discuss the issue. Waiting until the day of mediation to present an opening demand is a recipe for disaster.
Finally, make sure your opening demand is reasonable given all of the information at your disposal. Unreasonable opening demands are a dissservice to your client.
Defendant:
If you represent defendant, there is nothing that precludes you from making an opening offer before plaintiff makes an opening demand. In fact, making the first move might prove to be beneficial, especially if liability is not disputed.
Research shows that when two sides have relatively equal knowledge and bargaining strength, making the opening move may establish the “anchor” for the ensuing negotiations. Put another way, the party that makes the first move may gain an advantage, assuming the first move is reasonable. In other words, don’t wait!
Even if liability is disputed, there may be circumstances in which it makes sense to present an opening offer before plaintiff presents an opening demand. Whether to do so in a particular case depends upon all of the facts and circumstances. Carefully weigh the potential risks and rewards before making a decision. When in doubt, reach out to your mediator to discuss the pros and cons.
Whether you represent plaintiff or defendant, never let the “wait” problem get in the way of a productive mediation.
As always, It would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards,
Floyd J. Siegal