The concept of “anchoring” is as applicable in mediations as in any other negotiation setting. The first demand and counter-offer are critically important in that they are capable of communicating either hopelessness or glimmers of hope to the opposing party. An ineffective demand or counter that fails to achieve a client’s objectives, ones that are well below (if you are the defendant) or well above (if you are the plaintiff) what a client’s final position will ultimately be, and a party knows will be totally unacceptable to the other side, is not necessarily a productive negotiation strategy.
The first demand and counter should be based upon a reasoned evaluation of a client’s risks and invites the further discussions necessary to reach the client’s ultimate objectives. It may not be effective to initially demand well in excess of what the client can realistically expect to achieve even if a “home run” is hit at the time of trail.
The opening demand and counter are critical first steps on the road to the ultimate goal: a mutually satisfactory resolution. Moreover, if the ultimate goal sought will require creativity, consider imbedding a kernel of creativity in the opening position. If the sole purpose of a party’s negotiating strategy is to simply demonstrate or telegraph a party’s “power” or how “tough” or “disdainful” it is, or is otherwise unrelated to the ultimate objective, one could argue such a strategy has absolutely no strategic or practical value. If a party cannot support the reasons, interests and principles upon which its offers and counter offers are based to the mediator, it will be very difficult for the mediator to explain and explore the rationale with the opposing party.
While the mediator may be very good, the mediator is not a miracle worker.