Mediation – When is a Final Number a Final Number?

In a recent mediation, I was familiar with the negotiation styles of both attorneys because I had mediated with both previously. From the outset, plaintiff’s counsel indicated what he believed his client’s “final number” would be in settlement. As a mediator, I find it helpful to know the dollar amount for which the parties would like to settle. The question always becomes whether the parties will end up settling for their desired number.

As the negotiation got under way, it quickly became evident that defendants did not value the case the same way as plaintiff did. It was clear that if the parties continued to make the same settlement moves, plaintiff would end up about $50,000 short of his desired settlement amount. My advice to plaintiff was to keep on negotiating to further test whether defendants would change their evaluation of the case.

As the mediation concluded, my sense that the plaintiff was going to end up about $50,000 short of his desired settlement number was confirmed. I discussed with plaintiff his options which included, among other things, ending the mediation or trying to see whether defendants would raise their settlement number even a little. Unfortunately for the plaintiff, defendants did not budge, and defendants began to pack up to leave thinking the mediation was over.

As I relayed the defendants’ settlement position to plaintiff, I discovered that plaintiff was not as tied to his settlement number as he represented at the start of the mediation. I ran to make sure that defendants would not leave the mediation session, because a settlement was in reach.

The case settled for defendants’ number – not the number that plaintiff had hoped for at the start of the mediation. It was still a good settlement. This case served as a reminder that a party’s final settlement number is only, in fact, the final number when the settlement is reached.