Recently I was doing some mediation and negotiation training for some lawyers and we came to the issue of the opening session of the mediation.
One City lawyer was explaining to me that he had recently done an opening session where he made a significant concession out of the blue. It had not been put in the pre-mediation statement or otherwise before the mediation, but had been made to the other side's face at the opening session.
The concession had been done at the most dramatic moment at the mediation and frankly over-played the concession.
I loved the technique because it was quite clear that the lawyer got mediation technique.
The impact of the negotiation was to dramatically shift the course of the mediation and played a role in enabling the case to be settled.
With this in mind, lawyers need to start thinking in terms of the conduct of the mediation and the steps they can take to influence the other side. If you have an opening session with the other side, then perhaps that is the best time to make the concession.