In my many years handling complex, construction matters, I’m always amazed when I discover the real issues and what a plaintiff really wants from a defendant. Although a complaint is always asking for money for repairs, damages, etc., sometimes the real tipping point for a settlement lies in another completely different, and many times, unknown issue. I have found that it is always more meaningful to listen closely to what a plaintiff actually says it wants, as compared to their counsel. From the mouth of the plaintiff, one usually finds the crux of what is the actual result that the plaintiff wants, and many times it is not money (although money is never refused by any plaintiff!)

For example, I was involved in a complex, construction defect litigation. The plaintiff homeowner wife was very involved in the case, attending court appearances and participating in teleconferences, in tandem with her counsel. Throughout several mediation sessions, plaintiff’s counsel kept playing hardball with what we defense felt was an exaggerated settlement demand. The parties all appeared at an impasse. After about the fourth or fifth mediation, I was discussing the matter with the mediator. I asked about what the mediator felt the plaintiff herself really wanted. The mediator said he was not sure since the attorney had done all the talking, but he felt that she wanted something other than a ton of money.

With this in mind, the mediator had a face-to-face discussion with the homeowner and her counsel. The plaintiff expressed her real concerns–she really wanted an apology from the builder. She also wanted the builder to put up some money toward settlement, instead of just insurance dollars paying for the settlement. Once allowed to speak her mind, she made it clear that she felt that the builder had abused their relationship. Thus, an apology was warranted in light of the fact that she had not yet received one from the builder.

With this new information in hand, it was amazing to see how fast the entire case settled. At the next mediation, the mediator discussed the homeowner’s true needs with the builder and his counsel. After some wrangling, the builder agreed to pay a small amount out of his own pocket to the homeowner. When the mediator orchestrated a face-to-face meeting, the builder gave her an apology for what had happened. With an apology on the table, the rest of the mediation fell into place. The entire case, which had been a real dogfight over several millions of dollars, settled within hours.

The case goes to show that it always pays to ask a plaintiff what she really wants. The mediator and the parties must closely listen to what Plaintiffs say-it might just allow you to negotiate an excellent resolution for you and your client.

by David S. Schlueter

David S. Schlueter is a founding partner of Northrup Schlueter and heads the firm’s practice in Alternative Dispute Resolution. Representing business clients and private individuals in commercial and construction litigation matters since 1983, he focuses on the fields of Construction Law, Construction Defect, Real Estate, and Business Litigation. In addition to his experience in both negotiated settlement and trial matters, he has wide experience in arbitration and mediation, and is frequently referred by other attorneys to assist in resolving such cases through mediation.