Ed Ahrens, Jr., Esq. writes monthly thought provoking Editorials on mediation. These views are Ed's and do not necessarily reflect those of Florida Mediation Group.

"He wants a hundred thousand dollars for a whiplash injury?"

"She wants to pay only five hundred dollars for all my client's pain and suffering?"

Yep, same case, same parties. And haven't we, as attorneys and mediators, heard it all before? As mediators, this often is where we say, "Okay, now that I know both sides' positions are outrageous, let's move along."

Most attorneys understand the negotiating Ouija board and move patiently forward into the back and forth tussle necessary to achieve a settlement, normally one in which the claimant will receive a bit less and the defendant will pay a bit more than either expected.

Some attorneys, however, will shut down the process upon hearing the initial demand or offer. Not a very wise move, since in almost all cases, when a figure is perceived to be outside a reasonable range, it is being tossed out merely for the visceral reaction it gets. And that reaction can set the tone for the remainder of the negotiation, which almost invariably moves into reasonable, if not necessarily settleable, parameters.

Other attorneys and adjusters rant and rave, usually in caucus, at what they consider to be an unreasonable amount of money offered or demanded, in the misguided belief the mediator will be impressed, rather than see it for the posturing that it is.

Down deep, all of us want to receive something for nothing or to pay nothing for something, and we carry that dream into our personal and business dealings. After the car salesman tells us that the price of the vehicle (plus a "popularity surcharge") is on the window sticker, we laugh. He then asks, "What do you think you should pay for this fine automobile?" Whereupon we gently slip tongue into cheek and respond, "Fifty bucks!" Everyone laughs, and only then do both sides proceed to negotiate in a reasonable way.

If only an injury claim had a dealer cost basis from which to begin negotiations. Economic damages are the closest thing we have to dealer invoice, but, unfortunately, even they are often a subject of great dispute. In addition, questions of liability frequently cloud damage assessments. And carefully selected war stories of huge verdict recoveries or defense verdicts do not help much.

The psychology of offers and demands, including the manner in which they are submitted, is a fascinating one. The claimant must start high and the respondent low. (How high is high? How low is low? Same as the length of a string, i.e., twice the distance from the middle to either end!) If they don't, signals will be confusing, since each expects the other to do so. Only occasionally will the attorneys know each other well enough to avoid extreme starting positions.

A mantra that amuses mediators is the one that goes something like this: "Well, you just tell her that we came down from one million to $750,000, so she should come up the same amount!" If this logic were true, the claimant need only start at two or three million, in order to oblige the respondent to "match his move." The only way the logic could operate fairly is if the respondent were able to start with a minus figure, also of her own choosing. A respondent occasionally uses the ploy, but the "zero up" negotiating yardstick makes such reverse use rare.

Ultimately, a claim is worth whatever it settles for - or a jury, judge or arbitrator deems it to be worth - nothing more nor less. And, of course, either attorney has the right to storm off for having paid too much or received too little. That is the game, the game of negotiation, and, when it ends in a settlement, it sure as hell beats the alternatives.

So, stay cool during that opening round of the negotiating playoff and remain confident that, as Yogi Berra said, "The game ain't over till it's over."

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