Resolution Strategies | A Monthly E-Newsletter


More often than not, I’ve found that settlement negotiations tend to break down for one reason: one or more parties choose to employ a negotiating strategy and/or tactic which — though not necessarily the intention — prevents the parties from reaching “the outer limits” of their dispute, i.e., the minimum dollar amount plaintiff could reasonably be expected to consider under all of the circumstances and the maximum dollar amount defendant could reasonably be expected to offer.  


In the November 2015 edition of Resolution Strategies, I shared the story of a “transformative moment in mediation,” in which a 77 year old man had taken it upon himself to forgive the young woman whose negligence had caused him fairly severe injuries. As I described it back then, plaintiff “reached out to hug her, she accepted his embrace, and the tears began to flow.” Due to a “simple act of kindness” by a “good and decent man,” that young woman’s life was transformed that day.

Two weeks ago, under strikingly similar yet decidedly different circumstances, it happened again.  


A high-school student had sued the school district after suffering injuries during football practice. The school district had filed a Motion for Summary Judgment (“the Motion”) and was certain it would prevail. Over objection, the court had “ordered” the parties to engage in mediation. Understandably, defendant was an unwilling participant in the mediation process and refused to consider making anything other than a “nuisance-value” offer while the Motion was still pending.

Rather than send the parties packing, I decided to explore whether the Motion — instead of being an impediment to resolution — might be used as the actual mechanism to achieve resolution. After all, if the Motion was heard and granted, plaintiff’s only recourse thereafter would be a costly and time-consuming appeal; if the Motion was heard and denied, defendant’s bargaining position thereafter would be severely compromised.  

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