At some point the parties will have got as far as they are going by exploration of common emotional ground and objectives and will want, in fact need, to begin to move into the harder bargaining phase.

Even in the protective cocoon of a mediation there is often a reluctance to be the one to make the first move.  Employers fear that it may look weak or that the proposal put forward is so ambitious as to provoke an immediate waltzing-out by the other party.  This is not a necessary concern and I always encourage employers in particular not to take that stance.  Not being willing to make a first move at all is far more likely to persuade the employee that you are not taking the process seriously than making one which is unacceptable but at least has some rationale attached to it.

You should remember also that the mediator may already have gained from the exploration phase an outline idea of what the other party wants or its likely negotiation style.  Sometimes this may lead him or her to park a particularly thorny issue (usually the money) then to approach the settlement question initially via some softer avenues.  These might include references, outplacement or some acknowledgement/apology letter designed to reduce the emotional head of steam carried by the employee.  Signs that the employer is willing to make such concessions are valuable to the progress of the mediation even if the reality is that these are points of much greater worth and significance to the employee than they are to the employer.

Nonetheless, the positioning of the opening offer can set the tone, good or bad, for the rest of the mediation.  For that reason I would generally seek to “reality test” the opening proposal before taking it to the other side.  That means effectively holding up a mirror to a party’s suggestion, perhaps in the light of the other’s previous position in negotiations or in its opening statement, and asking how genuinely realistic it is.  Often it is effective to ask one party how, if they were the other, they would receive that offer.  Would they see it as a constructive approach, even if well short of acceptable, or as so far adrift of what they know the other wants that it represents no more than an insult? 

Tough negotiation is one thing, but once the parties stray into the Insult Zone, the mediation is already on its last legs.  After all, if all a party wanted to do was insult the other side, it could have done it in correspondence before we all got there.  Once at the mediation, however, I make a point of reiterating what we are there for – to try to reach a deal, and not to maintain the same entrenched postures which had failed to lead to settlement before we started.  This is particularly important where the lawyers are doing most of the talking.  They may have advised on the action or dismissal or claim giving rise to the mediation, and they may fear that their client will round on them if, having been paid for that advice, they now advocate too “weak” a settlement.  A good lawyer will however be able to separate the legal merits of the position from the best interests of the client – you can have a cast-iron case at law but that does not mean that you want the cost, distraction, risk or PR associated with fighting it.

Next, carrying on with the bargaining phase and telling your BATNA from your WATNA.