It happens often during mediations that I walk into one room where a party tells me that they were willing and eager to settle the case months or years earlier, before substantial attorneys’ fees were incurred, but the other side wouldn’t engage.
They say, for example:
“We asked for a demand early on and they never gave us one. Now we’ve spent $200,000 in attorney’s fees and I can’t settle for what I would have six months ago.”
Then I walk into the other room where the opposing party tells me a similar tale:
“We told them we would discuss settlement as soon as they produced the financial statements, but they never raised it again.”
I’ve heard both sides blame the other for fee escalation so many times. But it doesn’t have to be this way. Attorneys need to be more adamant with their clients and opposing counsel about engaging in settlement discussions earlier, more frequently and seriously.
It is not a sign of weakness to be the first party to make a reasonable offer or propose mediation. Be proactive. Stop beating around the bush and get right to the point.
What is a good way to approach it? Try something like this:
“We should settle this case and save both our clients the heartache and expense of litigation. It’s in everyone’s best interest. How do you like to settle cases?”
These conversations should occur monthly. Put them on your calendar to avoid dragging out conflicts. Your clients will be better off in the end and will thank you for it.