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Preparing for Mediation: Scripting Your Moves

From the blog of Nancy Hudgins

(This is the thirteenth in a series of posts on preparing for mediation.)

I moved to San Francisco in 1978. Joe Montana came a year later. Of course I became a big ’49 fan. Bill Walsh, the legendary ’49 coach, prepared for each game by scripting the first 25 plays. The team practiced these during the week. On game day, Walsh might not use all of the plays, or he might change the order of the plays as the situation warranted, but he could always return to the list. Walsh explained,

“The whole thought behind ‘scripting’ was that we could make our decisions much more thoroughly and with more definition on Thursday or Friday than during a game, when all the tension, stress and emotion can make it extremely difficult to think clearly.”

The same holds true for mediations. Negative emotions often come up in mediations, sometimes in the parties, sometimes in the lawyers. Scripting your moves in advance can enhance your ability to stay in the moment and not get side-tracked from your settlement objectives.

One of the first moves to consider is whether to make the first offer. Many lawyers are hesitant to do this, worrying that it will be seen as a sign of weakness. The negotiation literature suggests that the party who puts forward a reasonable first offer is the party who controls the outcome of the mediation. Psychologists call this anchoring.

When you put out a reasonable first offer, even if its reasonableness is a little high (or low depending on which side you are on) other parties react to it. Your first offer therefore anchors the other side’s expectations. Many studies have been done on this phenomenon and you can read about them in Malhotra and Bazerman, Negotiation Genius, and Lax and Sebenius, 3D Negotiation. It’s the same reason that minimum bids are set in auctions. The higher (a reasonable) minimum bid, the higher the ultimate sale.

From Lax and Sebenius:

“[S]ome researchers argue you should put the first offer on the table,
and make that first offer as aggressive as you can. Because anchors
shift negotiator’s perceptions of the bargaining range, more aggressive
offers tend to be more influential than less aggressive ones. And
because anchors are more influential under conditions of greater
uncertainty, the first offer can have a much larger anchoring effect
than subsequent ones.”

Your best first move may be making the first offer.


Nancy Hudgins

Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class… MORE >

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