Mediation – Know When to Show ‘em: The Art of Timing

Whether a case settles at mediation is often about timing. A case will never settle if a party never elects to show his or her hand. It is also the case that revealing a “drop dead” number too soon may frustrate efforts to settle.

In a recent mediation, the defendant wanted me to present a best and final number at the outset of the mediation. While it was true that the best and final number proposed by defendant was a reasonable approach to settle the case, I pushed back against defendant’s request to present the best and final number so early. I was worried that presenting the final number at the outset of mediation would impede efforts to settle the case because plaintiff would surely believe that defendant had more money to offer since he was so quick to make such a substantial settlement offer at the start of mediation. Accordingly, I counseled the plaintiff to make smaller settlement moves before presenting his best and final number.

Based upon my advice, the defendant’s mediation strategy was only to offer more money in response to lower settlement demands from the plaintiff. While mediation lasted longer than the defendant would have hoped, we were able to “protect” defendant’s settlement number, and the case settled for defendant’s best and final number.

The mediation reminded me of Kenny Rogers’ song The Gambler: “Y]ou’ve got to know when to hold ‘em and know when to fold ‘em” to obtain the settlement that you want.