14 Oct Everybody Is Afraid of Lowering The Ceiling and Raising The Floor!
Nothing sends shivers down the spine of litigants quite like the ghost of a previous offer haunting future negotiations. As we enter the spooky season, it’s an opportune time to reflect on a topic that can often feel like it’s haunted by uncertainty: lowering the ceiling or raising the floor in mediation.
It should be noted that all discussions at mediation, including negotiations, are without prejudice. By rights, the last offers of mediation should never be discussed. By the same token, the first question asked at a pre-trial conference by a judge after they understand that the case has already been mediated is “where were the last offers?” Judges should know better.
A key question arises: Do last offers made at mediation become a starting point for future negotiations?
The answer—like many things in our field—is nuanced: it depends.
Yes, They Do—Under Certain Conditions
Yes, they do IF the parties involved were comfortable with their last offers during mediation and there have been no significant changes in facts or circumstances. When both sides feel solid about their positions and no new information has emerged, it’s reasonable to treat those last offers as a foundation for future discussions.
No, They Don’t—When the Landscape Shifts
No, they don’t IF there have been material developments in the facts, evidence, or applicable law that alter the evaluation of the case. Such changes can shift the dynamics significantly—sometimes for the better, sometimes for the worse. In these situations, clinging to a previous offer can be akin to holding on to an outdated map in unfamiliar territory.
Pre-Mediation Considerations
This principle also applies to settlement discussions prior to mediation. If your most recent offer or demand didn’t resolve the case, it begs the question: why would you start from that point during mediation? If the initial approach wasn’t successful, it might be time to reevaluate your strategy rather than rehashing past offers.
Embrace Flexibility and Utilize Your Mediator
Adjusting your offers doesn’t have to be daunting. Instead of fearing the prospect of lowering your ceiling or raising your floor, leverage your mediator. Their unique position allows them to communicate effectively between parties without necessarily disclosing your full or complete stance. This can help ensure that discussions remain productive and focused.
Conclusion
As we navigate the complexities of negotiation this season, remember that effective mediation doesn’t have to be a frightening experience. By understanding how last offers can haunt—or help—future discussions, and by being willing to adapt and modify your approach, you can emerge from the mediation process unscathed – settled or not.
ABOUT THE AUTHOR
Logan Cooper joined the Cooper Mediation team in November 2017 and devotes 100% of her professional time to mediating at roster-rates. She has mediated over 400 cases in the areas of personal injury, property damage, long-term disability and other insurance-related disputes. She has handled global mediations, cases with multiple parties, self-represented litigants and cases with complicated technical and interpersonal challenges.
Logan can be reached at logan@coopermediation.ca or (416) 726-1344.
To schedule a mediation with Logan, visit: https://coopermediation.ca/logan-cooper-online-calendar/.