We Got ‘Em Cornered!

If your defense team is so proud of its case that you truly don’t plan to offer more than nuisance value, you shouldn’t bother to mediate. Instead, you should courteously and frankly communicate that fact to the plaintiff’s attorney before a lot of time is wasted preparing for, paying for and attending a mediation. If the plaintiff secretly agrees with your assessment, you might quickly get the job done over the telephone. If not, well, that’s what trials are for.

Hiding your intention to play hard ball until the day of mediation is a sure-fire way to crater any negotiations. There are usually enough emotions bouncing off the walls in the plaintiff’s room during the mediation of a tough personal injury case; a defense team that wants to settle shouldn’t add desperation to the mix.

Unless you're determined to try the case, don’t put the plaintiff between a rock and a hard place. Always give them a reasonable way out. In over thirty years of practice, I have seen only one plaintiff just give up and walk away from a no-offer case, and only a very few simply fold and accept a nuisance offer. People who have their backs against a wall usually fight, even if it’s irrational to do so. And if they fight, sometimes they win. Remember Doug Flutie’s long bomb against Miami in 1984?