In mediation, a well-timed move can shift the entire dynamic—just like revealing a single card in poker.
Even though mediation is confidential and without prejudice, many participants hold their cards close—reluctant to reveal their true flexibility or settlement range. The thinking is that showing too much, too soon, may be seen as weakness or might reduce leverage.
But here’s the paradox: the instinct to hold back, to protect your hand, often prevents settlement. Not because the parties aren’t willing to resolve, but because no one wants to go first. And that hesitation can cost both sides a resolution that was within reach.
I’ve seen mediations end without a deal, not because it wasn’t possible, but because the right signal didn’t come in time. Sometimes, just one real number could’ve changed the tone, bridged the gap, and closed the file either that day, or very soon after.
Why do people hold back? There are valid reasons:
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- They don’t want to negotiate against themselves
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- They feel the other side hasn’t “earned” any movement yet
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- They worry that flexibility will be seen as a sign of weakness
All of these are understandable.
But in many cases, the real power move isn’t silence; it’s a well-timed glimpse of possibility.
Here are two recent examples that brought this to life:
1. A tragic case, and a late-day breakthrough
In a catastrophic injury case, both sides genuinely wanted to settle. The plaintiff needed closure. The defendant wanted to resolve it with respect. But by mid-afternoon, the numbers were still far apart and movement had stalled.
I sensed there was room for flexibility on both sides, but no one wanted to go first.
I encouraged the defendant to consider a meaningful move, even if it bucked negotiation “norms”. They took the risk. The offer wasn’t what the plaintiff wanted, but it was a real number. The plaintiff responded with a strong counter, and we were back in business. From there, smaller moves got us across the finish line just after 6 p.m.
2. Emotions ran high, until one number cut through
In another full-day mediation, tensions ran high. Demands were aggressive. Both sides were frustrated, and we were spinning our wheels.
I asked the defense to consider a bold move: not just a number, but a number with context.
After some internal discussion, they decided to show their best number and explain why it was their best. They were clear and firm: the number wouldn’t go up.
The mediation ended without a deal, and with some tension still in the air. But the next morning, the plaintiff reconsidered. That moment of clarity had landed, and finally, they chose to settle.
One final card to consider:
In mediation, timing matters, and so does tone. But so does trust.
You don’t always have to show your whole hand. Sometimes, one thoughtful, credible card, shared at the right time, can open the door that everything else has been pushing against.
That act of trust can be the difference between walking away with progress… or walking away with nothing.
Facing a mediation where the numbers feel miles apart? Let’s talk about how to shift the dynamic.
ABOUT THE AUTHOR
Marshall Schnapp, BA, JD, LLM (ADR) has been resolving disputes for over 10 years as a mediator and has extensive experience in adjudication as well. Clients consistently recommend Marshall for his upbeat, tenacious attitude, and the skills he has honed helping resolve thousands of matters.
Get in touch with Marshall by email at marshall@schnappmediation.com or by telephone (416) 465-1886 today to set up a consultation, and see why he is the right mediator for your next file. For booking availability, please click here, or contact Lacey Day at lacey@schnappmediation.com or call (416) 465-1886 / Toll-Free: 1-800-524-6967
