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The linguistic games that lawyers and parties play in the course of trying to negotiate settlements in civil cases can be fascinating. Some folks just can’t, at any stage of a mediation, bring themselves to come right out and say what it will take to make them withdraw their case and go away. Some likewise just can’t bring themselves to say what they’re willing to pay to make that greatly desired event occur. Anyone who mediates cases often has heard the locutions. One of the most common ones proffered by defense counsel is, “I can’t offer that figure unless I can be assured the plaintiff will take it.” The mediator is then faced with the chore of offering the plaintiff an odd proposition: A particular amount is offered if and only if you will take it as the amount that settles the case. If you won’t take it, then it isn’t offered. Clearly, what the defense lawyer or claim adjuster is worried about is that a straight-out offer will simply drive up the bidding to a higher level. But what a plaintiff hears when the message is delivered is “this figure is not really offered at all, we just want to know if you’ll take that amount, and then we’ll probably offer you less.” Especially to an unsophisticated plaintiff, the formulation can sound like a trick, and that reaction can reduce the plaintiff’s ability to act rationally in the effort to negotiate a settlement. On the plaintiff’s side, the iconic statement is, “I can’t be expected to bid against myself.” Okay, the usual dynamic of bargaining is for the claimant to make a demand and the defendant to make an offer. But if the claimant starts at a level that is so much outside the realm of probability that it is the equivalent of no demand at all, the defendant understandably may feel that he or she is actually being asked to define the probable area of settlement rather than having a chance to react to the plaintiff’s signal. Some bargaining formulations, on the other hand, are great for advancing the ball. “Well,” a canny plaintiff’s lawyer will say, “I think my client might accept something in the ballpark of $100,000.” Super. Now we’re talking. The lawyer hasn’t really committed to the figure and has stated the matter in a way that allows him or her to come back with the surprise that the client has other ideas or the news that the ballpark mentioned really has an outfield for settlement of, say, $130,000. But the lawyer has signaled the likely area of settlement and the kinds of figures that are clearly not going to be acceptable. Talking about “ballparks” is usually much better than actually stating “ranges.” If a plaintiff says she’ll accept a settlement “in the range of $80,000 to $l00,000, the defendant will offer $80,000 (or, more probably, less). When a defendant phrases an offer as occupying a particular range, the plaintiff, conversely, goes for the higher figure in the range or above it. The only thing communicated well by the use of a “range” is the narrowness of the area of acceptability around the stated figures. Often, the most useful communication takes place in the phrases a negotiator adds when stating a figure: “I can offer $800,000, but that’s just about the end” or “I can offer you $50,000, but I’ve got a little room.” Such statements assist the adversary in gauging whether pushing for a wildly higher figure will simply close down negotiations. When a party senses that a case is not going to settle, he or she is usually reluctant to reveal the actual outer limit, knowing that there will be another opportunity to negotiate while selecting a jury or after the trial starts. Absolutely the flashiest thing to say is, “This is the figure and not a penny less/more.” Breathtaking. I know one lawyer who says this all the time, usually about two hours into a mediation. Then, 15 minutes later, he takes less than the announced absolute rock bottom, alerting me that I am not the only one who has noticed this pattern. If you make the “not a penny” speech, it’s a whole lot better to mean it. And it’s even better to provide a convincing justification for the refusal to negotiate further, typically, the reasonable proposition that the present “bargain” will go off the table if you have to start spending money and the client’s time and emotional resources gearing up for trial, since a purpose of offering to settle is to avoid those costs. The art of negotiation being what it is, of course, no one is well-advised to mediate by announcing his or her last best offer and simply sticking to it. Some verbal ploys, though, are a whole lot better than others for getting to resolution. Beverly Hodgson, a former Superior Court judge, is an arbitrator and mediator with Mediation Consultants and the ADR Center.

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