Thursday, January 23, 2014

Do you ever hold a Late Day Joint Session to Save a Dying Deal from Impasse?

Sometimes after a long day of bonding and commiserating, I get a sense that the lawyers are so busy posturing for their own clients that they get stuck in an argument they no longer believe in against "the enemy" in the other room.  Joint sessions at these junctures are risky business.  Still, I find it is worth taking that risk when real signs of an impending impasse seem to be looming. 

Last week, after 9 hours of negotiation on a case that had an initial demand of $500,000 and an initial offer of $15,000, the Defense offered a "last, best and final" offer that was well below the last mid-point of the proposed bracket that was on the negotiating table.  Hypothetically, Plaintiff was hinting that she'd take $200,000 by offering to bracket the negotiation at $100,000 and $300,000. and Defendant instead offered a randomly chosen $127,500.  At that point the lowest actual demand by Plaintiff had been $350,000, though it was apparent that the mid-point of their range would be $200,000.  Rather than present that offer myself, I invited the two defense lawyers to meet with the two Plaintiff lawyers (without their respective clients) and present the offer themselves.

I was not so very surprised, but pleased when the Plaintiff lawyer kindly stated that his team wanted to settle the case, couldn't accept that offer and was willing to stay to see if there was a number which all could live with that evening, rather than risk losing the deal after so much progress in narrowing the chasm between them had been made.  This was a gentlemanly hint that the gap between $200,000 and $127,500 could be bridged if they worked at it.  The defense counsel, to their traveling client's chagrin, agreed to stay for another hour to continue to negotiate, beginning with the terms of a long-form agreement which had heretofore seemed unattainable.

It only took another hour to move the Defendant up ever so slightly to $135,000. but at that point Plaintiff was satisfied that she had really gotten the best deal possible at the mediation.  And most of the non-monetary terms had already been agreed upon by then, too.

It's risky business, but I find that late day joint session between opposing counsel without clients can be worthwhile where the attorneys are urging settlement to their clients and feeling somewhat discouraged that the parties can reach an agreement based upon the negotiation at hand.