Principled negotiation or positional bargaining?

How much better it is for parties in mediation to formulate offers by reference to an arguable rationale: “Our settlement offer is £xxxx because.....“. The rationale serves to demonstrate the risk analysis (as the basis of further discussion) and signifies a serious intention to find common ground. It gains the negotiating advantage.

In a recent catastrophic injury case, the claimant’s opening offer was carefully rationalised, cutting out that part of the claim relating to the (slim) chance of this young Oxbridge graduate making it to Master of the Universe but for the accident, limiting her (more realistic) prospects to making partner in an accountancy firm.

The defendant’s insurers, by contrast, simply offered three times their own Counter-Schedule of Loss. This simply begged the question: why three times? Why not five times?

The case settled - but much closer to the claimant’s than to the defendant’s opening position.