Most clients are not familiar with the rhythm and flow of a mediation. Reviewing the social norms with them prior to the mediation may be useful to orient their expectations. The following are some principles of distributive bargaining that lawyers in most cases generally expect to be observed:
- Usually the claimant makes the first move, called a demand
- If the defendant wishes to negotiate a settlement, she will make an offer
- Each side then takes turns, making offers and counter offers
- Each side can decline to make an offer or counteroffer, in which case the negotiation will usually end to be suspended
- If the move is not large enough, the opposing party may refuse to respond
- Parties may refuse to “bid against themselves”—in other words, make a second offer after the previous one was to client without a counter
- If the move is too large, it may not be enough room for the party making the move to complete the negotiation
- If the move is too small, it may cause the other side to decline to respond
- Early moves are usually bigger than later moves
- Unless the circumstances of the dispute have changed substantially, each offer must be a move in the direction of the opposing party. However, the passage of a substantial amount of time or a significant change of circumstances (such as a court ruling on an issue) can—occasionally—justify a departure from this rule
- Once the parties are near closure, it is usually in the interest of the party receiving an offer to suggest splitting the difference at that point
- Once an offer is made, it remains on the table unless the person who made the offer takes it off the table
- While an offer is on the table, the recipient of the offer has the right to accept it
- Once an offer is accepted, the maker of the offer cannot withdraw or change it
Non-repeat players in mediation tend to negotiate hesitantly because it is their one and only opportunity to be made whole.
Hon. Jay Young (Ret.) is a retired judicial officer with decades of experience presiding over complex civil litigation matters. Following a distinguished career on the bench, Judge Young now serves as a mediator, arbitrator, and court‑appointed special master, and discovery referee. Judge Young brings a disciplined, impartial, and results‑oriented approach to dispute resolution. Judge Young is based in Nevada and accepts appointments statewide and nationally, subject to agreement or court order. He can be reached at 855.777.4557 or info@armadr.com
Known for judicial temperament, analytical rigor, and practical problem‑solving, Judge Young assists litigants and counsel in resolving high‑stakes disputes efficiently and with integrity and employing best practices. He is recognized by U.S. News and World Report’s publication Best Lawyers as Arbitration Lawyer of the Year.