Many years ago, with trial scheduled to start the following week, the parties retained me to conduct a “last-minute” mediation. The facts were straightforward and there was no dispute about liability. Defendant had caused a minor rear-end collision — the impact so minor that there was virtually no visible damage to either of the two vehicles.
Defendant contended that plaintiff couldn’t have been injured in the accident, but plaintiff’s experts were prepared to testify that plaintiff had sustained a mild traumatic brain injury and hearing loss when he struck his head on the headrest.
In private caucus, counsel for plaintiff informed me he intended to make a “seven-figure” demand. Fearing that a “seven-figure” demand would result in an insulting opening offer, which could lead to an unnecessary and unwanted impasse, I suggested it might be a better strategy to start with a more moderate demand.
Counsel for plaintiff rejected my suggestion, insisting it was not a typical “Minor Impact/Soft Tissue”(MIST) case. I then asked whether he would mind if I waited to present plaintiff’s opening demand until after I had met with the other side and reported back. He didn’t have any objection.
When I met with counsel for defendant and the claim representative, they assured me they were there in good faith — but I became more convinced that a seven-figure demand would backfire.
Given my certainty that traditional back-and-forth negotiations would quickly stall, I decided to make the unorthodox suggestion that defendant consider pre-empting the opening demand by presenting a single, non-negotiable offer. In order for such a strategy to have any chance of success, defendant would have to present the best offer it was prepared to make to avoid the looming trial.
Understandably, counsel for defendant was concerned that such an offer would become a floor for further negotiations. I promised I would not permit that to happen. Following lengthy discussions lasting nearly two hours, and notwithstanding their understandable reservations, counsel and the carrier agreed to the suggestion.
I asked counsel to write the offer on a piece of paper, fold the paper in half and hand it to me. Without looking, I slipped the paper into my pocket and excused myself to speak with plaintiff and his counsel.
When I met with plaintiff and his counsel, I told them I was about to present defendant’s only offer, that it was non-negotiable and that they were to either accept it or reject it. Assuring them it was the best offer defendant was going to make, I handed the folded piece of paper to counsel for plaintiff and left the room — not knowing what the offer had been, but confident it was defendant’s best offer and was likely to be substantial enough that plaintiff would have to give it serious consideration, especially given the very real risk that a jury might reject plaintiff’s claims.
Twenty minutes later, counsel for plaintiff came out to inform me that plaintiff accepted the offer.
Most of the time, refusing to negotiate is the worst possible approach. But every so often, a case may come along where the better strategy is to offer nothing but the best.
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