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.