By Christina L. Scott, J.D.
In mediation’s involving personal injury or contracts, it’s not uncommon for parties to disagree about whose turn it is to make an offer. This is because there was probably some number offered prior to mediation or even prior to the filing of the case. Depending on how long ago this occurred, parties may be confused as to whose turn it is to move. This is a great reason why parties should bring emails or similar evidence of last offers to the mediation table. Doing this can make it clear as to who has the proverbial “ball”. But what happens if there is no evidence? How should the mediation proceed? Who should make the first move?
The Plaintiff of course! Here are some reasons why:
They Filed the Case
The plaintiff is the one who brought the action, so it is essentially their case. If the plaintiff wasn’t demanding some number, they would not have filed the action. Therefore, the plaintiff is given the opportunity to speak first.
By making the first offer, the plaintiff will anchor the negotiation in their favor. Anchoring is a well-documented cognitive strategy that describes our tendency to rely on the first piece of information offered when making decisions. This initial piece of information subconsciously biases our expectations. The initial offer, whether the defendant likes it or not, tends to act as an anchor or reference point for all subsequent discussions. Thus, the plaintiff will steer the negotiation in the direction they wish to go.
Making the first offer affords a bargaining advantage to the plaintiff by way of leverage and information. During opening statements, the plaintiff is often “painting a picture” about the strengths of their case (information) and laying the foundation as to why you should accept their offer (leverage). This leverage and information can at times place the plaintiff in a position of strength at the negotiation table.