In wide-range cases you need a negotiation strategy.  It is a daunting task to negotiate a case in the low end of the verdict range without plaintiff walking or digging her heels in.  If you attempt to negotiate with low numbers without a calculated strategy, you might settle the case, but the risk of over-paying, plaintiff staying high, or plaintiff walking, is much greater.

In developing a strategy you are answering the question, “What will it take for plaintiff to accept a settlement in the low end of the verdict range?”   This sounds academic, but it isn’t; it is a very practical question.  If you can express a thoughtful answer to that question, you have expressed the outline to your negotiation strategy. 

The answer is not always simply to convince plaintiff the injury is only worth $X.  Sometimes you have to overcome some emotion she is attaching to the matter, or work around a particular secondary motivation or underlying principle she may be operating under, etc.  The answer lies in your knowledge of the plaintiff’s team and all the subtle nuances you picked up from them during the joint session.  It also lies in what the mediator learns additionally about plaintiff during private sessions, and what you in turn learn from the mediator. 

Occasionally, you’ll find a plaintiff with reserved emotional investment in the case and no notion as to its value, who will allow counsel to evaluate and negotiate the matter without interference.  Taking plaintiff’s emotions, motivations, and values out of the equation leaves only strategic arguments on the facts and evidence, which is much easier to deal with.  In this case, it behooves you to know as much as possible about counsel’s negotiation tactics, as well as his trial experience.  Develop your strategy around the leverage accruing you on the comparative strength of your arguments and elsewhere.  Plaintiffs who seemingly have little emotional investment in their case generally have little interest in trying it, so assume you have some trial leverage unless counsel convinces you to the contrary.

For plaintiffs who have an emotional investment in their case, they will make the decision to settle based on a mixture of complex internal and external factors, much of which will be beyond your comprehension.  Try, however, to sense as much as you can about plaintiff in order to anticipate how she will react to your settlement offers.  Plaintiffs don’t always behave rationally, so don’t necessarily expect her to.  Be ready to understand and deal with the irrational.

Robert J. Conover

30 Years in Claims and Litigation Management

Independent Mediation Negotiator  &  Claims Representative