Ed Ahrens, Jr., Esq. writes monthly thought provoking Editorials on mediation. These views are Ed's and do not necessarily reflect those of Florida Mediation Group.
“Sandbag: To refrain from raising at the first opportunity
in the hope of raising by a greater amount later”
--Oxford English DictionaryI recently conducted a mediation that ended on a disturbing note. Perhaps we all can learn from the experience.
Negotiations were moving along at a lively pace, although the difference between offer and demand appeared to be insurmountable. Indeed, the proceeding ended in an impasse — but with an unusual twist.
The insurance adjuster attended by telephone and was kept up-to-date by his attorney. Toward the end of two hours of spirited back-and-forth, Defendant’s counsel advised that he had $1000 more to spend, had already given me $400 of that and, therefore, could go no more than another $600 — or a total of $7000. I had no reason not to believe he was being straight with me. Call it instinct (or naiveté). I suggested to him that I would explore, without his authority or acquiescence, whether Plaintiff was interested in anything in the “teens.” (There was a second Defendant whose involvement is not significant to the theme of this article.)
When I conveyed the new “final” figure of $7000 to Plaintiff, it was rejected out of hand. I then asked whether his client would consider anything in the teens. He informed me they already had been offered $16,000 by the adjuster before suit was filed, that he had rejected it, and he requested I not disclose that information to Defendant’s counsel. I returned to the Defendant and conveyed Plaintiff’s rejection of the “teens” floater. I did not to mention the presuit offer.
I then brought the parties back together, at which time counsel for Plaintiff informed Defendant’s counsel of the $16,000 presuit offer. The latter appeared genuinely surprised. The adjuster was not on the telephone at the time. An impasse was called.
So what did we learn from all this? Since Plaintiff would not come down from his last demand of $90,000, it was rather obvious a settlement was not in the offing under the circumstances. However, it was not beyond imagining that something in the mid or high twenties might have attracted Plaintiff’s attention. But where exactly was the Defendant? $7000 or $18,000? Big difference. It might be said that this mediator (if not also defense counsel) had been sandbagged, either intentionally or by reason of a breakdown in communications between adjuster and counsel. Of course, the harm done, if any, was not to this mediator but rather to the parties themselves and to their efforts to avoid a costly trial with all its uncertain outcome.
Attorneys, adjusters and, yes, mediators all have strategies for conducting and expediting negotiations, but those techniques should always be calculated to achieve results. In this case, “the proof of the pudding…,” well, you get the drift. Here, the hidden agenda served to frustrate the very objective of mediation.
As an aside, I am confident this conflict would not have occurred had the adjuster been present. Did his counsel know about the previous offer? Had the adjuster deliberately failed to inform his counsel? For that matter, why did Plaintiff’s counsel wait so long before disclosing the older offer? Who knows. I certainly did not, but I was disappointed in the outcome of the deliberations, and I have to wonder if the outcome might have been different given greater candor on the part of both parties.
Incidentally, the OED definition, one of several, is in the context of a poker game maneuver. In its more nefarious connotation, it seemed apropos to the above mediation proceeding.
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