Nothing Builds Trust like a Credible Offer

A party’s expression of their willingness to settle may give rise to optimism on the other party’s behalf. But if it’s followed by an offer that is perceived as derisory, those hopes may be dashed. So before the mediation day, some mediators are encouraging parties to be prepared to make an early offer at the mediation. While it may not be accepted, such an offer - provided it is in the credible zone - is a more compelling way to show good faith than mere words.

Exploration of the parties’ interests and needs is still vital of course, but a realistic offer early on is a powerful way for one party to encourage the other to trust that they have a genuine desire to settle. Words can be cheap, but the mediator who encourages a serious offer can accelerate the bargaining process, and still allow the parties to explore elements beyond the legal issues, such as their commercial and personal interests.