It borders on heresy for a mediator to publicly endorse the notion that one party or the other can sometimes benefit by “walking” away during a mediation, but that’s precisely what I’m here to say. Paradoxically, that’s because “walking” can sometimes be an effective way to reach a resolution.

Consider a recent mediation in which counsel for plaintiff — after 3 hours of negotiations — made a “final demand” of $450k. In response, counsel for defendant proposed a bracket of $275k – $325k. Counsel for plaintiff rejected the bracket and renewed the $450k demand. Counsel for defendant formally offered $300k, but confidentially told me that he might be able to “meet in the middle.” Counsel for plaintiff rejected the offer and “walked” away from the mediation, but did agree to leave the demand open for 72 hours. Less than two hours later, counsel for defendant called to tell me the carrier had agreed to the accept the demand.

In another recent matter, counsel for plaintiff called me a week or so before the scheduled mediation and asked me to call defense counsel to tell her plaintiff’s “policy limit” demand was non-negotiable. Plaintiff’s hope was to resolve the matter without having to move forward with the mediation. Defendant rejected the demand and insisted on proceeding with the mediation. As promised, plaintiff refused to budge and “walked” away from the mediation quickly, but did acquiesce to my request that the demand be left open two weeks. Within two days, defendant agreed to the demand.

I’ve had similar experiences where it was defendant who “walked” away from the mediation after extending what was described as a “best and final offer” or “the carrier’s full authority,” only to have plaintiff thereafter accept the offer.

To be very clear, the willingness to “walk” away from the mediation does not guarantee resolution, but it does serve to demonstrate one’s resolve while simultanesouly testing the other side’s resolve.

If defendants in the above-described mediations had not been willing to accept plaintiffs’ demands, they wouldn’t have done so. The reason they agreed to accept plaintiffs’ demands is that plaintiffs, by “walking” away, had convinced defendants those were the best deals that could be negotiated.

Whenever a party says “best and final” or “bottom line,” they risk forfeiting their credibility unless they follow thru. It’s usually not enough to “talk the talk.” One has to “walk the walk” — even if that means literally (or virtually) “walking” away from the bargaining table.

There’s no denying that “walking” has potential benefits. However, it also presents inherent risks. The other side might choose to call your bluff, forcing you to either back down or proceed to trial.

In other words, you should definitely exercise caution before “walking” — it’s a very big step and you don’t want to ignore the possibility that you could fall flat on your face.

As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.

Best regards,

Floyd J. Siegal