Rethinking the aggressive opening offer in mediation

The exchange of offers at the outset of mediation often follows a familiar script: Each side begins with an extreme proposal that neither expects to form the basis for resolution. Consider a lawsuit in which the outcome is uncertain, each side having some prospect of success. According to ritual, the plaintiff offers a negligible discount from its best case, while the defendant offers to pay only a small part of its expected costs of defense. The proposals are extreme not because they are aggressive, but because they are untethered from any defensible assessment of litigation risk. The starting point is essentially a surrender demand.

When both sides begin at the edges, mediation can devolve into a prolonged exchange of tiny, symmetrical concessions that do little to close the gap. Each party hesitates to make a meaningful move for fear of legitimizing the other's extreme position. The risk is not just prolonged mediation. Studies of mediation behavior show that wide opening gaps correlate with lower settlement rates and longer negotiations, particularly when early concessions are perceived as symbolic rather than substantive. The parties may succeed in generating offers that mirror one another in extremeness but lay a framework for failed mediation. See, e.g., John Lande, "Principles for Policymaking about Collaborative Law and Other ADR Processes," 22 Ohio St. J. on Disp. Resol. 619, 650-653 (2007).

Yet the practice persists, raising two practical questions: Why do extreme openings remain so entrenched? Would either party be better served by starting, or responding, with something else?

Why aggressive openings are made

A host of reasons explain why extreme openings are so prevalent. Negotiation research shows that first offers exert an anchoring effect on final outcomes, even when both sides recognize the number as strategic rather than substantive. Opening positions influence counteroffers, concession patterns and the perceived bargaining range. Adam D. Galinsky and Thomas Mussweiler, "First Offers as Anchors: The Role of Perspective-Taking and Negotiator Focus," 81 J. Personality & Soc. Psychol. 657, 659-63, 669-70 (2001). For the same reason, aggressive openings often provoke aggressive responses. Because lawyers understand anchoring, aggressive counteroffers are often intended to neutralize the initial anchor by setting up a competing reference point. Advocates may believe that a more moderate opening will be interpreted as weakness or lack of conviction, while an aggressive opening signals confidence.

Extreme openings also can reflect client dynamics. A party may need to express indignation before becoming emotionally ready to compromise, or to signal institutional resolve before acknowledging risk. Or they may believe that an extreme opening is just part of the mediation dance and that the opening is of little or no consequence. 

Finally, parties may assume that the settlement will land somewhere between the opening numbers, which encourages both sides to push their first positions outward.

How aggressive is too aggressive?

The choice is not between an aggressive opening and a reasonable one. In practice, the real distinction is between an aggressively strategic position and a position so extreme that it provokes an equally extreme response. An opening untethered from any plausible assessment of risk often provokes retaliation, while a more moderate position is less likely to trigger escalation and impasse. Martin Schweinsberg, Gillian Ku, Cynthia S. Wang and Madan M. Pillutla, "Starting High and Ending with Nothing: The Role of Anchors and Power in Negotiations," 48 J. Experimental Soc. Psychol. 226, 226-31 (2012). The first party to stake out a principled yet aggressive position may be able to anchor the negotiation that follows toward that offer. This suggests that the first mover should consider proposing something that is aggressive but more justifiable given the strengths and weaknesses of their side.

If the first offer is extreme, should the responding party reply in kind? At first blush, the answer may seem yes. A strong counter may be viewed as necessary to prevent that number from dominating the negotiation. Yet if the responding party's aim is to anchor the negotiation toward that party's proposal, a more grounded offer may be more effective. Such a proposal can reframe the negotiation around a range the other side recognizes as plausible.

A strategic offer should not be confused with weakness, even in the face of an extreme opening. It can be a deliberate effort to shift the negotiation from signaling resolve to evaluating risk, and to move the outcome in the moving party's favor. The mediator can help when parties remain apart by turning to tools such as brackets [Denise Madigan, "Bracketing: An Alternative Mediation Technique," Plaintiff Magazine, July 2023], contingent offers, structured messaging or attorney-only discussions to shift the negotiation from ritual to problem-solving.

Considerations for advocates

In mediation, success is measured by whether the process moves the parties toward an agreement that is better than their alternatives. With that in mind, parties should not reflexively opt for an extreme opening, but instead weigh its merits, the alternatives and their implications for later rounds. Is the number meant to anchor, start a reasoned dialogue or do something else? Can the position be justified using evidence, legal risk or valuation logic? Has the client been prepared for recalibration once counteroffers arrive? Should the mediator deliver a message with the offer? Prior bargaining history also may shape how the offer is received, particularly if earlier exchanges suggest a narrower range. In that context, an extreme opening may be perceived as bad faith and risks derailing the mediation. The challenge for both the opening and responding party is not whether to be aggressive, but how aggressive to be. Positions that are grounded in plausible risk assessment can shape outcomes and protect against anchoring. Positions that are untethered from reasoned assessments may do the opposite. Such openings may feel aggressive but can present a missed opportunity to shape the negotiation that follows.

Disclaimer: The content is intended for general informational purposes only and should not be construed as legal advice. If you require legal or professional advice, please contact an attorney.