When you are at the end of your authority, there is still a gap, and you feel your final offer conveyed through the mediator will not be accepted, consider making the offer directly.  If you sense plaintiff has good respect for you, and you have laid a good foundation as to the reasoning for your position, consider asking for a personal session with plaintiff and counsel in order to make the final offer.

It is more effective if only one defense team member makes the offer.  Generally, the offer should be made by the team member most confident and compelling in making it.  You might otherwise consider that if plaintiff’s negotiations have been dominated by counsel, defense counsel make the offer; if plaintiff’s negotiations have been dominated by plaintiff, the adjuster make the offer.  All things being equal, the final offer seems to go over better with these combinations, likely due to there being more trust in these respective combinations.  In all cases, however, let your instincts guide you.

If you have good reasoning why you cannot justify meeting plaintiff’s last demand, give it to them briefly and eye-to-eye, with conviction.  Don’t, however, rehash all of your arguments and justifications; what you are doing now is making an emotional appeal, not a logical appeal.  Tell them you understand and respect their position, the most you can justify paying on the case is X, and offer your regrets the case does not look like it will settle. 

DO NOT convey this offer with any kind of attitude.  This tactic will not work if you come across expressing in your voice or body language that you are right and they are wrong; you must use your most humble countenance and voice to pull this off.  Add whatever words you have thought of or developed from experience to get across your sincere belief in the value of the case and your regret it will not settle short of trial.  Then ask to speak to the mediator outside for a moment.  This will give plaintiff and counsel time to discuss your final offer.  After a few minutes let the mediator go back in with plaintiff.  With this humble approach, you’ll be surprised how often your offer is accepted.

Robert J. Conover

30 Years in Claims and Litigation Management

Independent Mediation Negotiator  &  Claims Representative

805/473-1206  -- Central & Northern California  --  rjcono@aol.com