Maybe you should have mentioned that earlier?

We were deep into the mediation. The parties had passed the exposition phase and had entered the exploration phase. I felt I had just made a breakthrough by getting the defendant to admit that, yes, maybe he did owe something to the plaintiff, and that yes, maybe it would be best to make some offer to settle the matter.

“I’m willing to offer $60,000,” he said to me somewhat sheepishly, “but I won’t go past $70,000.”*

“Now we’re getting somewhere. Let me bring that to the other side,” I said. In the other room, I tell them I’ve got some good news. “The defendant has moved from his previous position that he had no liability to you whatsoever and is now offering $60,000.” There are some rumblings and grumblings, but otherwise the offer was greeted favorably.

More after the jump.

“Well, that’s something,” the plaintiff remarked, “but not near what it will take to settle the case. Besides, the defendant offered me $80,000 in the hallway before we started.”

“Really?” I remarked quizzically, “I was unaware that any offers had been made.” In fact, I swore to myself that I had asked the parties during our initial general session whether any offers had been made and both parties were silent on the issue.** “Putting that aside for the moment, let’s talk about this offer.” After some discussion, the plaintiff admitted, “I can come down to $85,000. Take that back in the other room.”

“Gladly” I told them and shuffled down the hall. As I closed the door behind me, I looked at the plaintiff and said, “I don’t recall, were there any attempts to settle this matter prior to us starting today?”

Taken aback, the defendant scrambles to say, “Uh, oh, yea, I made an offer of $80,000 in the hall before we started.”

“Well, that’s great news, because they’ve come down to $85,000. Since we’re now only $5,000 apart, let’s try to get this settled” I said, all the while thinking, “Maybe you should have mentioned the $80,000 offer earlier?”

From that point it was simply a matter of dotting i’s and crossing t’s, but the mediation would have been a lot shorter had someone mentioned the $80,000 offer a little earlier. There is a slim possibility that I didn’t ask the parties whether there were any prior settlement talks. But there is another possibility. My wife suggested that maybe because these two businessmen came without counsel, I may have asked them a question in a manner with which they weren’t familiar. Maybe they thought “settlement” meant something more formal, like the mediation session. In any event, I will now remember to fully explore the status of any prior talks before getting knee-deep into the mediation.

*Of course, amounts and other information has been changed to protect confidentiality.
**Neither party appeared with counsel, preferring to negotiate like businessmen.