During the course of most personal injury cases in litigation, there comes a time when settling the case makes sense. This is usually after all information has been exchanged with the other parties and the plaintiff’s condition has either resolved or at least reached a plateau. Sometimes the parties will participate in a settlement conference of some sort a short while before trial.
Today I attended something called a “Voluntary Settlement Conference.” The court ordered us to take part in this conference because the judge felt we might be able to settle prior to the trial date. Actually, it isn’t really a “voluntary” conference because the judge ordered us to participate, but that’s what it’s called.
During the conference, a volunteer settlement officer tries to get both parties to the law suit to settle. Usually this person is a lawyer volunteering his/her time. The defense lawyer offered $4000 on a case that was probably worth about $85,000. We started very high…at around $250,000. I knew that was probably too high given some of the difficulties of the case. However, I was prepared to “dance” with the other party.
I remembered something I learned in one of the mediation courses I took several years ago. The leader of our course at the time explained that in most other countries of the world, haggling is a way of life and is expected. To some extent, in some parts of the world, it is rude not to haggle. However, in the USA, we usually don’t haggle. Usually one party says, “That’s my final offer” far too soon. You need to be prepared to haggle for a long time, in small increments, sending “signals” to the other party about your good faith settlement approach.
We came down to $175,000, which was a strong signal to the other party that we were willing to talk. They came up to $12,500. We went back and forth about 10 times until we agreed on $75,000. This would not have been possible if one side decided to dig in their heels or give a “final” position too early. When both parties engage in the “dance,” cases have a better chance of settling. Of course, we also had a great settlement office who kept both sides talking and engaged in some of the best shuttle diplomacy I’ve seen in a long time. My client thought it was silly to some extent to go back and forth too many times. However, when you’re dancing with the enemy, you need to play by the rules and avoid stepping on any toes.