Stories From a Mediator #2: When The "No Offer" Case Settles

Here’s another story about my experiences and observations in mediation.

This story is about Ken the defense lawyer who assured me that his case would not settle because the carrier was not going to offer anything. “We can’t settle Jeff. We’re not offering anything”

I responded, “Ok, maybe you’re right, the case will not settle. But let’s see what might happen. Let me chat with the other side.”

So I caucused with plaintiff’s counsel, Patricia, who admitted that her client would not perform well under pressure in trial and, more importantly, liability was disputed. She assured me that she could reduce her demand, “Yeah I have room to move.”

Of course, at that moment I realized Ken was reacting to Patricia’s demand. After some discussion with Ken and his adjuster, they made some calls and obtained a modest sum to offer Patricia and her client. The case settled.

Later that day, Ken sent a one-line email to me, “You deserve all the credit for this one. Thank you.”

This was not a big case but it makes the point that mediators should realize that parties may assume tough bargaining positions due to their reactions to each other. It can be tough to get one side or another to make the first move, but mediators should have confidence that the parties would like to end the litigation. A little digging into the positions can go a long way to breaking the impasse.