In negotiating a money settlement plaintiffs and defendants come to the table from two different places. Plaintiffs’ concessions are largely speculative. Plaintiffs are giving up dollars they do not yet have and may not have for a long time due to litigation delay, or that they may never have due to an adverse or inadequate trial or appellate verdict or an inability to collect a favorable verdict. Defendants, by contrast, are offering to pay a specific amount of real, out-of-pocket dollars, often as an immediate lump sum. This dichotomy does not necessarily confer a negotiating advantage on either side, but counsel – and mediators – should be aware of this critical difference in each side’s mindset and approach to bargaining.
Francis Carter
