Surviving the Insult Round in Mediation

by | June 2023

Michael Ludwig outside smiling

After an initial “insult round” in a recent mediation, where the opening demand (predictably) was way too high and the counteroffer (predictably) was way too low, I encouraged the parties to move toward a range of reasonableness.

Instead, this is what I got: “Mike, we understand that one side is going to have to get reasonable first. You need to understand, it is not going to be us.”

For better or worse, the insult round lives on in the mediation of employment disputes in California. Is that a problem? Not necessarily.

Don’t Take the Insult Round Personally

Don’t take the insult round personally. Many attorneys tell me that they interpret a too-high opening demand or too-low opening offer as a “[screw] you” from the other side. That makes the negotiation process more personal than it needs to be.

Recently, while driving, I inadvertently made a left turn in front of someone at a four-way stop when it was their turn to go. Sure enough, the other driver rolled down his window, thrust his middle finger into the air with enthusiasm, and then unleashed a tirade that I could see but perhaps fortunately not hear through my closed window. In that moment, it struck me how incredibly disproportionate the response was to the offense. By taking it personally, the other driver turned what would be perhaps a five-second inconvenience into an episode of rage that likely simmered long after the moment had passed. And all over what was an innocent (but admittedly irritating for them!) mistake.

When I find myself irritated or inconvenienced by something someone else does, I try to avoid attributing malice to their actions where they can adequately be explained by something else less personal. When you assume malicious intent, you are more likely to respond emotionally, which can be unhelpful at best, and in the context of negotiations, counterproductive.

Be Prepared for the Insult Round

Like we used to say in Boy Scouts, be prepared. You already know, as a seasoned practitioner, that any mediation could start with an insult round. So prepare your client for that possibility. A shockingly high opening demand by a plaintiff-employee may embolden the plaintiff, who now sees big dollar signs, while also disheartening a defendant-employer, who wonders why they bothered showing up. A shockingly low opening offer can have the same effect but in reverse.

Neither feeling is particularly helpful to the process, and both can be avoided with proper preparation. Educate your client about the process, and make sure they understand that where the negotiation starts is not where it is going to end. Reassure your client that the mediator handles these kinds of negotiations every day and knows how to guide the parties toward resolution, even when it seems hopeless in the beginning.

Get Reasonable First

Finally, consider being the side that gets reasonable first. There is little risk and much to be gained from resisting the urge to retaliate against an insulting demand or offer with an equally insulting offer or demand. Instead, consider responding with an offer or demand that informs the other side, and the mediator, that you are serious about making a deal. If the other side fails to respond in kind, then a different approach may be in order. But most of the time, cooperative negotiation by you will engender cooperative negotiation by the other side.

In other words, do not let a startling opening demand or offer derail your mediation. Don’t take it personally; move forward and stick with the process. Remember that most employment disputes can, should, and will be settled.

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Hi I’m Mike Ludwig

I committed myself to honing my craft as a mediator and relentlessly learning everything I could about dispute resolution. I will endeavor to share thoughts and insights about some facet of mediation, negotiation, and dispute resolution, and other information that could be helpful or interesting to you.