Often late in the day a party will give the mediator an offer, concluding with the words, “And tell them this is our final offer!” But is it? And how should you respond? If it is their first “final offer,” it is almost always best to test the finality with a counteroffer. So long as you keep negotiating, the party who made the “final offer” will usually make two more offers before they quit. But what about the rare instance where their first or second final offer is both acceptable to your client and really is their final offer? Even if they reject your counteroffer, you will still have an opportunity to accept their last offer before they pack up and leave.
Francis Carter
