Skip to content

Proposal For Settlement And Mediation; Part I: Negotiation and Timing Goals

February 20, 2012

Properly used, a proposal for settlement (in some jurisdictions, referred to as an offer of judgment) is the strongest weapon in any litigator’s arsenal.  (In Florida, see, Section 768.79, Florida Statutes (2011) and Rule 1.442, Florida Rules of Civil Procedure.)

This simple procedure to legally shift the burden of all fees and costs of continuing litigation to your opponent when a “fair” settlement is timely offered, assuming the procedure is properly used (no small task as can be seen by the number of appellate cases defining the procedure’s legal requirements), becomes a powerful incentive to terminate unnecessary litigation.

As mediation has essentially the identical goal, coordinating the use of the proposal for settlement procedure with your mediation conference should play a critical role in your mediation strategy and planning. 

Initially, it is most important you focus your formal mediation negotiation and your specific mediation timing using the all-important proposal for settlement procedure as one of your planning guides.

(Parts II and III will address other useful strategies combining important mediation issues and the use of any proposal for settlement.)

Negotiation:  Regardless of your final overall use of a proposal for settlement, your  ultimate negotiation goal at mediation should be the same: leave your (final resolution*) mediation either with the resolution you seek or with your very best offer designed to obtain resolution “on the table”.

(*as distinguished from an “early”  or “discovery” or other mediation intended as non-final .)

Whether you have already made  any proposal for settlement before mediation or not, and regardless of your side of the issues, always be prepared to finally reach and tender your very lowest (or highest) offer prior to actual trial prior to leaving your mediation.  Should this “best” offer then fail,  you must always, regardless of the timing of your trial, then follow-up immediately and formally with your proposal for settlement at your exact lowest/highest offer made at mediation.  (More on this later.)

This easy, but demonstrative tactic  also clearly puts the full weight of the force and effect you believe your “best” offer deserves.  And, should your offer thereafter be determined as correct, the dividends to be obtained under the law and rule of procedure are extremely rewarding to any successful user.

But, there also is an added mediation benefit to this pre-planned mediation tactic ( and, it is also one of your mediator’s best weapons).

If both sides use this same strategy (and they should) both sides should* end with their separate positions very, very close.  And, if so, resolution almost always follows!  Why?  Because the “dividend-penalty” to the prevailing party under the proposal for settlement procedure is usually simply too great for either side to ignore such closely opposing proposals.   It is the rare attorney or client who will remain confident they can predict a trial outcome when any remaining difference is very small.

(*I use the term “should” here because it has been my experience that if both sides have competent counsel and use the same fact, law and other resources available to them to reasonably forecast their future should mediation fail, their evaluations will almost always be very, very similar.  It is only in those matters where one side (or both) are NOT fully prepared where the evaluations remain disparate due solely to parties using totally different facts or law for their forecasts.)

Timing:  a second major tactic to consider is the timing of your proposal of settlement in relation to your planned formal mediation conference. 

Earlier, I referenced  the use of proposals for settlement when contemplating this one factor to consider when in scheduling your mediation.  See, Mediation Strategy:  Timing The Scheduling Of Your Mediation”  January 28, 2010

Among other timing considerations, and regarding the availability of this proposal procedure, your mediation should be held at least sixty days prior to the beginning of your known trial period to then permit you to fail at mediation but still be permitted a timely submission of your last and presumptively your very best proposal for settlement.  (The Florida procedure usually provides for validity up to forty-five days prior, but with mailing and calendar counting and other administrative glitches, most attorneys prefer not to cut it that close!)

However, your very next most common planning tool is to also make sure any proposal for settlement you have submitted or plan to submit to your opposition has expired or will expire prior to mediation.   (Part III of this series will address the interesting choices facing you should you fail to heed this warning!)

And, of course, you will want to pre-consider the practical effect of any expired proposal for settlement you make upon any mediation negotiation.

Although any use of a proposal for settlement permits your opposition the opportunity of assuming that if the matter could have been concluded by accepting the proposal timely it surely would still permit settlement at mediation, technically, at least, that is not a valid assumption.  At the least, beginning your mediation position at the beginning value upon which you either discounted your “demand” or inflated your “offer” is fully consistent with the bargain that was previously available but is now no longer.

I say, technically, however, as you surely know that either side will, with somewhat good grounds, assume your final position at mediation must certainly be very close to your proposal!  i.e., If a client would have found it acceptable then, what major change, if any, has occurred that would alter that earlier position?

Again, simply planning and preparation.

In summary, by combining the best features of mediation timing, with the best features of the proposal for settlement procedures and proper planning, you will be able to maximize your opportunities of mediation negotiation success, either immediately or soon thereafter!

What Do You Think? Your Insight Can Be Helpful To Others.

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: