And Now For Something Completely Different: Can Novel Mediation Strategies Solve Common Complaints About The Process?

And Now For Something Completely Different: Can Novel Mediation Strategies Solve Common Complaints About The Process?

At mediation, it’s hard not to think about your odds at trial. As you assess what your best and worst day in court might look like, remember that a mutually agreeable settlement at mediation is a guaranteed win. You might not walk away with everything you wanted, but you also won’t walk away worrying that you may sustain a loss. If it’s possible, work together (and with your mediator) to achieve a mutually acceptable agreement and a certain outcome. 

In my experience, when a matter doesn’t settle, the most frequent complaints I hear from mediation participants are being insulted by unrealistic opening offers from either or both sides, wasting time that could be better spent negotiating, and suffering from negotiation fatigue after a grueling series of offer rounds.

In this blog post, I discuss these common complaints and offer suggestions to avoid falling into these traps.


Too often, opening statements are presented in a way that are unhelpful at best and counterproductive at worst. Repeating what is in your mediation memorandum wastes the most precious commodity we have – time. Talking up your case and your chances in court while being dismissive of the strengths and prospects of your opponent’s case rarely changes their opinion. Instead, it usually just gets their backs up. Finally, when an opening offer is unrealistic, it’s often countered with an equally unrealistic number (if the opposing party doesn’t simply leave the mediation).

Between opening statements (if we have them) and first offers, we are usually 60 to 90 minutes into a half day mediation. We’ve highlighted all of the reasons the case cannot be resolved. We’ve exchanged emotionally charged opening offers based on best-case scenarios and I’ve spent 10 minutes in each room trying to convince the participants to either not leave the mediation or to not respond-in-kind. 

How much longer will it take for the parties to get to a zone of potential agreement if their starting positions are miles apart from one another? The answer is often too long. Incremental movements in subsequent rounds of offers compound frustration with exhaustion. As the clock ticks away, eventually it will either bring clarity to the situation or run out before parties can reach an agreement that would have probably been possible if a mediation session had started out differently.

While I have strategies for getting things back on track during these situations, wouldn’t it be better to avoid these problems in the first place?

Novel Negotiation Strategy #1: Stick To Common Ground… At Least At First.

What would happen if we agreed to a rule that the participants at mediation were only allowed to mention the reasons the case should resolve at mediation? What if they only discussed areas of common ground or subjects suitable for compromise? Would we find ourselves in a different situation after openings? Would the parties identify as sharing a common goal (to settle) and be more amenable to making reasonable attempts to settle after hearing from each other that they may not be as far apart as they think?


In Vance Cooper’s recent blog post, Don’t Read This Paper [If You’re Content With The Status Quo] – Re-Thinking Personal Injury And Insurance Mediation Processes, he suggested dispensing with opening offers entirely. 

While I think it’s a great idea, I’m not ready to go that far yet. I am ready to shake things up, refrain from slipping into auto-pilot mode and re-think or assess why the parties make their offers in the way they do.

Recently, I polled the audience on LinkedIn and asked participants at mediation if they thought that results from mediation would differ if first offers came from the defence rather than the plaintiff as is typically practiced. 

Two-thirds responded they believe the results would stay the same. I found that surprising considering in most of the mediations I conduct, one of the parties feels upset, frustrated or even angry with an opening offer. That goes both ways – plaintiffs starting too high or defendants responding too low.

So, if there’s not much enthusiasm for switching up first offers, what other options are there?

Novel Negotiation Strategy #2: Blind Offers

Rather than responding to the “reasonableness” of the opposition’s offer, what if each side made their first offer at the exact same time?

The negotiation phase of the mediation would start in breakout rooms. Each party would submit an opening offer to the mediator. Once the mediator has an initial offer from each party, the breakout rooms would collapse and the parties would come together in the main session.

The mediator would read out the opening offers simultaneously while the parties looked at one another (albeit virtually). Each party would have the opportunity to explain why their offer, made before they could be “insulted” or “angered” by the other party’s offer, was reasonable.

The thought is that at least one of the parties would take this opportunity to tempt the opposition with a first offer number that shows a willingness to deal with realistic figures.


I’ve often described opening offers using traditional bargaining in the following way:

You’ve got two heavy-weight boxers at the top of their class, standing or starting from their respective corner inside the ring. Until the boxers get close enough to one another to actually land a punch, neither side is making contact. Getting within an arm’s-reach of your opponent requires you taking some risk (the opponent may land a punch), but it’s also the only way to land a punch and secure a knockout deal.  

Is your plan to stay close to your corner, practice shadow boxing and demonstrate fancy footwork? Realistically, after witnessing this show, will your opponent admit they are hopelessly outmatched and just throw in the towel by agreeing to your highball / lowball offer? It’s not likely.

A productive mediation process is fueled by tempting your opposition while also acknowledging your own risks. Both are two-way streets.

You need to make an offer tempting enough to demonstrate real risk if the opposition doesn’t take your offer seriously and you do better at trial (for example, partial vs. substantial indemnity costs). In response, you should receive an offer predicated on how tempted they were to make a substantive move towards the middle. 

To be clear, I’m not asking for your best or final offer to be the first offer you make. Be the first to extend the proverbial olive branch and make an offer in the broad realm of reasonableness. Be transparent when you send the message through the mediator. If your counterpart doesn’t take this offer / opportunity seriously, they should know you won’t continue to go out on a limb. 


Negotiation fatigue is very real. From time to time, it can derail a mediation that could / should / would have otherwise likely come to a settlement.

Let me take you down this path from the mediator’s point of view. For this example, assume this “case” has a value range as follows:

*low side: $30 to $50

*moderate side: $50 to $75

*high side: $75 to $100

If one party, the other or both decide to start with offers well outside the high/low case range (let’s say $500 or $3, respectively), I am asked to present those offers with a straight face to the opposition and explain why they make sense.

I’ve seen the receiving party leave the mediation. Even if they stay, we may proceed through multiple rounds of offers before reaching an impasse at $100 vs. $30 as time is about to run out. 

Credibility is lost when I present an opening offer many times higher or lower than the case eventually resolves for – especially when the parties do get relatively close by the end of the mediation. Think about it: The same mediator who presented an offer of $500 is now telling you that there is a gap of $70 which could be bridged because there is interest from the other side. From my experience, when this happens, people are drained, people don’t have the same patience they did to start the day, and people lose faith that a bridge can be built.

Novel Negotiation Strategy #3: Limited Offer Rounds

Steve Rottman, a mediator friend of mine from California, believes there should be only three offers made at mediation. Opening offer. Counter offer. Final offer!

While he uses this format regularly, three offers may not work for all disputes. However, limiting the number of offer rounds at the outset of the mediation allows for bigger moves that help create momentum to bridge gaps between the parties. 

Like two ships passing in the night, the parties syncing up their timing may be as important as the numbers exchanged themselves. By limiting the offers volleying back and forth, the participants could be in a better position to retain the emotional capital needed to problem solve and close the gap. 

If the parties trust the mediator to reveal their highest/lowest offers in confidence, the mediator can better manage expectations or movement from one side, the other or both. Best practice is to send messages through your mediator to the other side to signal when the end may be near. At minimum, make sure the mediator is aware of your game plan to avoid the risk of losing a potential deal.


Mediation is supposed to be a risk-sharing exercise. Unless you’re only present to “tick a box” or to gauge your opponent’s readiness for trial, the goal is to find a path to a mutually acceptable agreement. It doesn’t make sense to use negotiation strategies that would likely cause mutual annoyance.

Whether you’re game to test out my novel negotiation strategies or prefer to stay closer to the conventional approach, remember that respecting the opposing party’s time can go a long way to facilitating positive movement and constructive talks.

If you want to work with the other parties to strike a deal, you’re going to need to be within arm’s reach. Tempt one another to share in the risk and the reward of a guaranteed win.


Jon Cooper  is the taller and non-bow-tied mediator with Cooper Mediation Inc. He mediates primarily, but not exclusively, in the area of personal injury and insurance. Jon belongs to the International Academy of Mediators. The IAM is an invitation-only organization consisting of the most successful commercial mediators in the world who must adhere to the highest practice and ethical qualifications.

Jon can be reached at or at (647) 993-2667.

To schedule a mediation with Jon, visit:

Cooper Mediation