Modern Mediation: Making the First Offer
When I clerked long ago for Judge Owen M. Panner, he followed a strict rule for his settlement conferences:? Plaintiff makes the first offer.? And, of course, the corollary rule: The prayer in the Complaint does not count as the first offer.? The best part of these rules is that they establish a custom and expectation that eliminate posturing over who blinks first. The point is, it really doesn’t matter who makes the first offer (or demand), so long as the parties don’t paralyze the negotiations over their apprehension that making it displays weakness.? This is why, with few exceptions, I look to the plaintiff to make the first offer in a mediation.
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CPA/ABV/CVA/CFE Litigation Support Professional for Fraud, Economic Damages, Business Valuation & Accounting Malpractice
1 周Really enjoy all your posts Jeff. Thank you.
High Stakes Business and Technology Lawyer | Representing Startups, Video Game Developers, UGC Creators, and Innovators (posts ≠ legal advice)
1 个月I agree the plaintiff makes the first demand.
Business Litigation Attorney (Shareholder) at Markowitz Herbold PC
1 个月how do you counter the plaintiff's argument that "I don't want to make a bid against myself" meaning, why should I move from my complaint amount if the defendant has not made a counteroffer to that. I think the reply to the plaintiff is "the defendant has responded already, at $0 in the answer, so let's get back to making the first offer at a material level below your prayer in your complaint."