Many people think that forcing the other side to make the initial offer in a negotiation is the trick to being a successful negotiator. The logic to this approach to negotiation is that by forcing the other side to make the initial offer, the offeree will learn what the offeror values the case at and that value may, in fact, be less than what the offeree thinks the offeror’s case is worth. (For instance, I’m willing to pay up to $10,000 for a used car but I don’t make an offer and ask that the seller tell me what he wants for the car. It’s possible the seller might say $7,500.)
Other people believe that the trick to successful negotiation is to engage in something called “anchoring.” The definition of anchoring is “an attempt to establish a reference point (anchor) around which a negotiation will revolve and will often use this reference point to make negotiation adjustments. Anchoring often occurs when the first offer is presented at the beginning of a negotiation.” (In the above example, I may be willing to pay up to $10,000 for the used car but I make an offer of $5,000 with the idea that whether the purchase price goes up or down, it will be from the starting point — or anchoring point — of $5,000.)
Regardless of what negotiation approach to which you may subscribe, if any at all, you must enter mediation in good faith. What you cannot do is come to the mediation and attempt to use the mediator’s credibility as a neutral to try and trick the other side into thinking its case is worth less than it actually is. An example will illustrate this point. Recently, I conducted a mediation whereby one party attempted to anchor the negotiations around what I would later learn was a largely misleading set of facts. This party insisted throughout the mediation that other side was, literally, not entirely in touch with reality. As a result, I spent almost the entirety of the mediation trying to unpack the true facts from which I could then attempt to help the parties reach a fair resolution. This left little time to assess the significance of the true facts and how those facts would appear to a judge and jury. (I understand the time honored tactic in negotiation to “bluff” but bluffing involves advocating a position that is at least a logical one based on some set of facts that are true.)
In any event, the aforementioned mediation proved to be unsuccessful because at least one of the parties entered the mediation with the goal of choosing an unreasonable anchoring position. This party bluffed its way to nowhere, ended up wasting everyone’s time and money on mediation, and ended up paying far more than it would have had to have paid had it been candid with me at the mediation.