Desperation to settle makes favorable settlement more difficult

I am often confronted by clients wanting me to reach out, yet again, to a recalcitrant opposing counsel or party about settling their cases. Typically, when I send out a settlement proposal that isn’t responded to in a timely manner, I will ask–once–when I can expect a response. However, I prefer not to begin reducing my demand or begging for a response in the face of the opposing party/attorney’s silence. Doing so looks desperate, and appearing desperate isn’t a favorable negotiating position.

Clients understandably want to resolve their disputes quickly and with a minimum of fees. Few of my clients want me to drag a case out as long as possible, and none of my clients are willing to pay substantially greater fees to have me do so. But when the other side believes my client is the party more eager to settle, that party can seek, and likely obtain, concessions as part of a quicker resolution than that party could obtain otherwise.  So, when my client is desperate, I am trying to hide that desperation.

In my experience there are two ways to get a stonewalling party to negotiate: 1) make it expensive for them to reject negotiations; and 2) have a trial date approaching. Both of these tactics require preparing for trial. Often I will issue discovery, notice depositions and, when I am close to prepared for trial, set mediation, in order to make the other side incur attorney’s fees and costs in the hope that the other side will begin negotiating. If that fails, having a trial date approaching will get almost any attorney, and most pro se litigants, to negotiate. And if the other side won’t negotiate, the only real option is trial.

If may be ironic, but appearing eager to settle makes settlement harder. It is further ironic that the best method of encouraging settlement is preparing for trial.

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