I recently heard of a case where the parties settled . . . after 63 moves. No kidding.
Sixty-three moves. How does that happen? Many cases settle after a handful of moves.
But sixty-three? That’s a lot.
Apparently the plaintiff wanted a lot. A whole lot. And the defense didn’t take offense or call off the mediation. They didn’t stand up and walk out. They took a different approach.
Sometimes parties at mediation refuse to respond to an offer from the other side. Why is that? Aren’t we here to negotiate? Aren’t we here to settle? How does a flat refusal to negotiate move the ball down the field and closer to the goal line?
In some respects a refusal to negotiate seems completely at odds with the mediation process.
In other ways, it makes sense.
Everybody knows that mediation is a process of give and take. Sometimes it involves more giving, sometimes more taking. If a plaintiff comes in with a sky-high number, what’s a defendant to do?
In nearly every case the defendant wants to settle. And in most cases the defendant has some negotiating room. But if the plaintiff is in a different universe and won’t come down – what’s next?
If a plaintiff has a slam-bang case and the defendant offers next to nothing, what’s a plaintiff to do?
I’m convinced that in many (maybe most) of these situations, a party who refuses to respond to an offer from the other party is trying to relocate the negotiations to a different range. Sometimes the verbal responses are “They’re negotiating in bad faith” or “they need to get serious” or “they need to give us a real number” or “we’re not going to negotiate against ourselves.” But what’s really being said is “the other side is in the wrong negotiating range and we’re not prepared, interested or willing to negotiate there.”
It’s a tough situation. If a party makes a reasonable offer and the other side flatly refuses to respond, how does that feel to the party that made the offer? Often that party feels like the other side isn’t here to settle, or isn’t negotiating in good faith, or it simply acting irrationally without good reason.
But there may a good reason why one side stops negotiating. The side that refuses to move is strongly, aggressively telegraphing that they want to negotiate only in a different range. The problem is that a refusal like that can knock the legs out from under the party who made the last move. Where does such a refusal that leave them? How much do they have to move in order to elicit some kind of a response from the other side? With a bit of tenacity and skill perhaps such a mediation can be saved, but I’ve seen such mediations go down in flames.
During the sixty-three move mediation, one side was unwilling to negotiate in the range proposed by the other side. So they started going up by increments of . . . one dollar. The plaintiff would move and the defense would come up exactly one dollar. Again and again and again. Such an approach shows a willingness to continue negotiating – but it also strongly telegraphs to the other side that if any real progress is to be made they will need to move into a different range altogether.
On May 6, 2025 at 5:00 p.m. the Alameda County Bar Association will be hosting an MCLE program via Zoom entitled “Mediation: Why the Other Side Won’t Settle – and What You Can Do About it.” It’s a one-hour program. At that program I’ll be talking about several reasons why parties refuse to negotiate at mediation – and available responses that can be used to counter (or prevent) that. To sign up for the program, register here: acbanet.org/calendar/ . This same program will also be hosted by the Contra Costa County Bar Association at 12:00 noon on Tuesday, June 3, 2025 via Zoom. Program signup is available at https://www.cccba.org/attorney-events/
If you can’t make it that day, send me an email and let me know you’d like to attend the program but can’t make it. I expect to be presenting this same program to one or more other bar associations via Zoom and I can let you know when and where those other programs will take place.
Robert Jacobs practiced law for more than 30 years. He’s been mediating cases since 2016. He views himself as facilitator, river guide and occasional bulldog. He finds that two of the hallmarks of successful mediation are advance preparation and tenacity. He’s affiliated with Judicate West, where he mediates Business, Real Estate, Employment, Construction, Personal Injury, Medical Malpractice and Trust Litigation cases.