In the 1996 movie “Jerry Maguire,” Rod Tidwell famously demands that his agent, Maguire, show him the money. “Show me the money, Jerry!” And while Jerry, desperate to keep his only remaining client, agrees to the demand, he ultimately rebukes his client by showing him that he hasn’t earned it (the money) yet. Rod’s lack of commitment to his craft, driven by the fact that his team won’t give him the contract, is the very thing that stands in the way of “the money.”
The lesson is that if you show you deserve something, you are much more likely to receive it. Rod commits, makes the impossible catch, and gets the contract!
In mediation, I am often faced with a party who thinks taking an unreasonable position, one unsupported by facts or law, is a good way to start. I then spend hours, if not days, helping them walk back from the proverbial ledge while also keeping the opposing party engaged until I am successful.
Regardless, some attorneys find success by starting high. One reason for this is that the first number a party puts on the table is rarely the number that settles the case. Yet, in many cases, it can heavily influence the outcome. Particularly in business disputes and personal injury cases, parties and their counsel often grapple with a central tactical question: should we start with an aggressive number?
Starting high — whether in the form of a plaintiff’s initial demand or a defendant’s opening offer — can sometimes create leverage. But it can also shut down dialogue, damage credibility, and increase friction between parties. The strategic decision to anchor high must be made with care, context, and clarity about its intended message and potential risks.
The Logic Behind Starting High
In negotiations, the concept of anchoring plays a well-known role. Behavioral economics shows that people tend to rely heavily on the first piece of information offered — the “anchor” — when making decisions. By starting with a high number, a party can attempt to shift the zone of possible agreement upward. In both personal injury and business litigation, this tactic can be used to frame expectations and position the settlement closer to a desired figure.
For example, in a commercial breach of contract case, a plaintiff may claim damages of $3 million but start with a demand of $8 million to signal confidence, suggest the presence of punitive elements, or simply provide room to make concessions that appear reasonable later. Similarly, a personal injury plaintiff may open with a $1.5 million demand on a case they realistically expect to settle for $600,000 — hoping to define the conversation at a higher level.
In theory, this opening maneuver creates negotiating space and demonstrates conviction. It can also discourage lowball counteroffers and serve as a psychological tool to influence the mediator and opposing counsel. Unfortunately, theory does not always translate into fact.
When Starting Too High Backfires
While anchoring can be powerful, overreaching can derail a mediation before it starts. Here’s why:
1. Loss of Credibility
An inflated number can suggest that the party is not negotiating in good faith. In business litigation especially — where disputes often revolve around contractual terms, quantifiable losses, and well-documented financial records — an unrealistic number can signal either desperation or a lack of seriousness. This can cause the other side to disengage or retaliate with an equally unproductive counteroffer.
2. Creating a Psychological Wall
Instead of framing the negotiation, an extreme number can harden the other side’s position. In personal injury cases, for instance, an insurer faced with a demand that far exceeds policy limits or medical documentation may decide not to counter in kind, or may walk away altogether.
3. Wasting Time and Momentum
Especially in mediations with time constraints, starting at an implausibly high number can lead to hours of futile back-and-forth before the parties even begin to talk in realistic terms. This inefficiency can wear down participants and leave the parties farther apart at the end of the day than where they started.
4. Offending the Other Side
Mediation relies in part on maintaining a cooperative dynamic. An opening number that is perceived as insulting or disingenuous can damage rapport, especially in emotionally charged personal injury cases involving wrongful death, sexual abuse, or catastrophic injuries.
When It Might Be a Good Idea
There are times, however, when starting high may be defensible, even advisable. These include:
1. Sending a Message in High-Stakes Commercial Cases
In litigation between large companies, an aggressive number may reflect actual exposure when claims involve complex IP rights, shareholder disputes, or class actions. In this context, a high anchor may prompt an internal reassessment of risk by the opposing party’s executives or insurers. For instance, if a tech startup sues a multinational for misappropriation of trade secrets and opens with a $100 million demand, the point may not be to settle at that number — but to make the case appear dangerous enough to spur serious engagement.
2. Policy-Limit Strategies in Personal Injury
In some jurisdictions, a plaintiff’s counsel might deliberately open with a demand well above policy limits when they suspect bad faith tactics from an insurer. This preserves the argument that the insurer had the opportunity to resolve the case early and chose not to, potentially exposing it to extracontractual liability later.
3. Demonstrating Strength to a Reluctant Defendant
Where liability is contested but the facts are strong, a high demand can serve as a show of confidence. For example, in a trucking accident case with compelling dashcam footage and a sympathetic plaintiff, an opening demand of $5 million — even where damages are likely to support half that — can prompt defense counsel to reevaluate and accelerate the path to compromise.
Tailoring the Strategy to the Context
The question should never be, “Should we start high?” but rather, “How high is too high, and for what purpose?”
Key considerations include:
- Strength of the Case: A weak liability case doesn’t support a high opening, regardless of damages. Conversely, overwhelming liability and serious damages may justify a strong anchor. But when faced with a sophisticated opponent, be prepared to listen and be ready to move your number down quickly if you risk losing their willingness to negotiate in your range.
- Mediator’s Role: A skilled mediator can reframe and de-escalate posturing. If you are concerned about a high opening being misinterpreted, previewing the number and the rationale with the mediator in a pre-mediation caucus can help support your position.
- Relationship Dynamics: In disputes involving ongoing business relationships — such as partnership dissolutions or employment claims — an extreme number can inflame tensions and reduce the likelihood of a relational resolution. Even in so-called “one-off” personal injury disputes, extreme numbers can send the wrong message and erode your opponent’s trust in your willingness to resolve the case.
Practical Guidance
- Use Ranges or Qualifiers: Consider opening with a number framed as a “negotiation starting point” rather than a fixed demand. It invites response while maintaining flexibility.
At mediation, everyone expects you to start high, and as mentioned above, it’s important to consider what is too high. But as long as you move into a reasonable, supportable range early, you will have little trouble keeping your opponent’s attention.
- Justify the Ask: Whether it’s a business valuation in a commercial case or a life-care plan in a personal injury case, support your opening figure with some analysis. This shows thoughtfulness, not gamesmanship.
- Read the Room: In some mediations, especially where emotions run high or previous offers have been exchanged, a modest opening may serve the process better than a calculated anchor.
- Plan the Concessions: A high opening only works if it’s followed by meaningful and well-timed moves. Your opponent may pay more attention to the pattern of movement than the first number itself.
Conclusion
Starting too high at mediation is a double-edged sword. When wielded carefully, it can shape the negotiation, convey confidence, and result in a favorable settlement. When handled poorly, it can alienate parties, damage credibility, and sink a mediation before it begins.
For both business litigators and personal injury attorneys, the key lies in strategic intent, situational awareness, and clear communication. The goal is not to win the first move — but to start the mediation in a way that invites more moves and, ultimately, resolution.
Eric Gillett is a professional mediator, arbitrator, and litigator. He is also a founding member and managing partner at Preg, O’Donnell & Gillett. He is licensed to practice in Washington, Oregon, and Alaska and has tried dozens of cases to verdict and mediated hundreds more. A highly experienced commercial mediator, Eric can be reached through his legal assistant, Jasmine Reddy, at 206-287-1775 or jreddy@pregodonnell.com. Further information is available at gillettmediation.com or via email at eric@gillettmediation.com or egillett@pregodonnell.com.
