The Five Biggest Mistakes Parties Make in Mediation. And How to Avoid Them. Number 2: The Too Fast Offer

As a civil, commercial and employment mediator in the UK, I've worked over the last decade with hundreds of parties in mediation with numerous different styles and tactics. I've mediated cases with competitive to collaborative parties and everywhere in between. However, there are some strategies that people deploy in mediation that just tend not to work. The outcomes of this can range from losing momentum in the mediation to at its most extreme, derailing the mediation entirely.

In this series, I am going to look at five of the biggest mistakes that parties and their advisors make in mediation and some ways that they can avoid this.

Last week, I looked at The Surprise - you can read the article here.

This week, I'm going to dive into one of the absolute biggest mistakes that people make in mediations: The Too Fast Offer.

Mistake Number 2: The Too Fast Offer

What is it?

The Too Fast Offer refers to the tendency that many parties have in mediation to "cut to the chase" and to put out a speedy offer without giving enough time to think about what they've learned from the mediation so far or to think about how best to position an offer within a negotiation strategy. While parties do normally need to make proposals in mediation (and overly delaying making offers is equally problematic), the Too Fast Offer is one delivered at lightning speed in a mediation and which has a negative effect.

Frequently, the Too Fast Offer may be one that has been pre-planned long before the mediation and thought about only from the point of view of the giving party (or with thinking about only the headlines of the other side). It often comes with little explanation and may be presented with a pressure to the mediator and the other side to get on with it and to not "waste time" coming back with discussion points.

Where the offer comes later on, an equal mistake can be that having discussed it at length within a room, the offer is presented to the mediator to take across as quickly as possible before anyone within the room can change their mind. The mediator is discouraged from discussing the offer further in that room but instead told "Just take it across. This is our offer". Bonus points if the party tells the mediator to "work your magic" as they hand over the super fast offer.

Whatever way it's conveyed, the party is treating the offer like a serve in tennis - to be fired as fast as possible and out of their side of the court.

Why do Parties do it?

There are a number of reasons that parties try and make offers too quickly. At its most simple, parties often rush offers because they are thinking only from their own point of view. They have decided that there is a simple solution to the issue (frequently the one that they had before they came to the mediation) and that further exploration of this will not help anyone.

Parties may also be trying to be competitive - hammering home their own points and needs, and glossing over entirely the weaker points in their case in how they make an offer or what the other side wants. (I will look at the error of ignoring weak points in a later article). Parties here think that it shows strength to do this and that a hard and fast first offer will get them more quickly what they want.

Frequently parties may also have fatigue (from the process, the litigation, or even the other people in their room) and want to get on with. There can be a misplaced view that going fast will conquer dissent and also make the process overall go quicker. There can also be a genuine positive view that it is helpful to "get the ball rolling" by making an offer and to start bargaining.

In all instances, when a party is going fast in how they convey offers they are thinking from their own perspective (be that the solution is simple; they want to be competitive or that they want to get on with it) and they are thinking less about the other party; how to work with the mediator; or the wider context of the mediation.

Why Doesn't it Work?

There are a number of dangers to the Too Fast Offer. The number one being that it generally fails to have the intended effect on the other side of being persuasive but is received as being not thought out and deliberately pressurising.

When parties have got to a mediation, they have generally been through months if not years of litigation with the other side. In rare cases do both parties think that the solution is simple and instantly solvable - if they did, they wouldn't be there. Therefore for a party who thinks that the problem (and therefore the mediation) is complex and should take some time, they can be bewildered by an opposing party who ignores this dynamic and instead rushes offers.

At best the receiving party may think that the party that makes a rushed offer has not given enough thought to the offer. They are likely to think this especially if the offer makes little or no reference to what the receiving party wants, but is only from the offering party's viewpoint. If it repeats arguments or offers made prior to the mediation process with no additional context learnt at the mediation, this viewpoint will be compounded.

Receiving parties may also find the offer confusing and not understand why the party has made it (and instead have a list of questions for the party back which takes even longer). If the offer glosses over nuance - e.g. "we will just make you a global offer of X, payable in Y Months" the party is likely to wonder what is being left out. If the offer is perceived as extremely ill-thought out, the party may just ignore it entirely.

Where a party perceives the offer as pressurising, this presents a different challenge. Parties will always resist what they see as pressure from the other side. They may do this by looking at what the offeror wants and calculating that this is what they should be tough on to keep the other side in the negotiation and eventually relent on. Alternatively, they may just be equally pressuring about their own goals.

The real danger with this is that there may be nothing wrong with the offer at all but just its timing and the way that it is explained to the other party. Mediation is not a sport - a party cannot serve an ace - there will always need to be a response from the other side, if only to say yes. Therefore if a party is not ready to receive it, the offer will not work, no matter how good it is. To put it another way, the right offer at the wrong time is the wrong offer.

How to Avoid the Mistake of The Too Fast Offer

The reader of this article may be thinking to themselves - "But what is the mediator doing whilst the party is making this too fast offer?"

It's the right question to have. And it also gives the solution of how to avoid this issue and maximise the chance of an offer being received well. Use the mediator but Use the Mediator in the right way by working with them.

When I work with parties, I always try and avoid the party from making the Too Fast Offer. I also try and avoid them from using me as a messenger to take whatever proposal they want to the other room and bring one back. If you are just using the mediator as a messenger, you might as well just be sending an email.

Instead, as a mediator as well as being a process facilitator, I also can act as a negotiation coach with parties. This means that I can work with parties to look through the offer, delve into its details and look at how this can be interpreted by the other party based on what has been shared within the mediation.

As a mediator, something that I am able to offer to parties is the ability to road test the offer. Before an offer goes across, parties can practise giving it to me and seeing how it feels to deliver it. I can also deliver it to the giver as though they were the receiving party. Doing this is extremely valuable as it allows parties to think about the offer from the receiver's point of view and how the offer can be strengthened and explained. Explanation is absolutely key for an offer to be effectively received by the other party.

Additionally, parties can ask the mediator to help them with building an offer and handling intra-team disagreement. The way to do this is to separate the people from the problem and allow the mediator as facilitator to help the party to go through its options and discuss what an offer might be. Parties sometimes think that the mediator cannot be there whilst they discuss what offers to make as a team but there is no reason for this and mediators can be present during this and help facilitate the conversation.

Finally, the mediator also has the advantage of knowing where both parties are mentally within the process and can help guide on timing of offers. If a party does want to move things along, I might work with them on understanding where the other party is in its appetite to receive an offer but also assist in how the desire to make an offer can be conveyed. A neat way to do this is rather than taking an offer across, is to take across that you feel it is close to time to make an offer. That gives the other side the opportunity to prepare to receive the offer and makes it seem less rapid and forced.

Ultimately, offers are a two-way street and parties should aim to deliver the right offer at the right time with the right explanation so that the other party can receive it well and respond effectively.

Conclusion

In writing about making offers, there always need to be a balance found in getting the timing and content of the offer right and making an offer. Ultimately, parties do need to make offers if they want to settle the dispute and the overly hesitant party is also unhelpful.

However, it is important to get offers right. The best way to make an offer is to make sure that it speaks to the concerns of the parties and to allow the mediator to work with the party on finding the right timing and method to convey the offer. In doing that, the offer goes from being a good offer served too fast, to a strong winner.

Next Time

In the next article, I will be looking at the third big mistake parties make in mediation: Ignoring Your Own Weak Points.

Previous Articles in this series

Mistake 1: 'The Surprise'

About the Author - Frederick Way

Frederick Way is an experienced civil, commercial and employment mediator based in London, working with parties from; individuals, large corporates, charities and public sector organisations since 2012. In 2024, he was named Civil/Commercial Mediator of the Year at the National Mediation Awards, the highest award in UK Mediation.

Frederick works as a full-time as a mediator in both my own practice, Frederick Way Mediation, and at CEDR. He also works as a lead trainer in Mediation, Negotiation and Conflict Management as well as coaching parties and lecturing internationally and have worked with law firms, universities, public bodies and corporates.