Resolution Strategies | A Monthly E-Newsletter


As a mediator, I’ve discovered a truth that wasn’t really self-evident during my years as a litigator. Over the past ten years, I’ve repeatedly observed plaintiffs and defendants allow their negotiating strategy to be dictated by the other side. If one side presents a demand or offer deemed unreasonable, the other invariably counters with an offer or demand intending it to be equally unreasonable, inevitably leading to a series of tit-for-tat moves that make resolution more difficult. To prevent this scenario, consider declaring your independence from “reactive” negotiation.  


Nearly seven years ago, the California Supreme Court rendered its decision in Howell v. Hamilton Meats & Provisions, Inc., limiting a plaintiff’s right to recover economic damages for past medical expenses to the reasonable value of the services rendered or the amount actually paid by the plaintiff’s health insurance carrier, whichever is less.

At the time, offering my prediction of the impact Howell was likely to have, I wrote the following:

“In the short run, defendants will undoubtedly temper their settlement offers, believing that juries will be less likely to award substantial “general” damages absent evidence of substantial “special” damages.”  


Nearly eight years ago, on June 2, 2010, pitcher Armando Galarraga — then wearing the uniform of the Detroit Tigers — did something very few players in Major League Baseball have ever done. I’m not referring to the fact that he pitched what everyone agrees was clearly a perfect game. Rather, I’m referring to something perhaps even more rare and, in my opinion, more significant. I’m referring to the fact that a Major League Baseball player reacted to a first base umpire’s glaring mistake – in this case, a mistake of truly epic proportions that deprived the player of his rightful place in Major League Baseball history — not by arguing, but by accepting the umpire’s decision with perfect grace and equanimity.  

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