ABSTRACT
This chapter focuses on the judge-mediator's task of trying to produce a settlement in the face of adversarial resistance and various hardball tactics and contingencies interposed by the negotiating lawyers. It tracks the entire course of a single large money damage mediation by following the back-and-forth bargaining over money and exchange of figures between the mediator and the litigants. The chapter examines the following aspects of talking money: delineating the range; giving "blackest thoughts" instructions; speaking circumspectly about figures; brinksmanship and other tactics of hardball negotiating for settlement in an effort to avoid impasse. Much of the negotiator's work in advocating for the most favorable settlement possible involves the building of contingencies and playing them as bargaining chips during the settlement negotiations. While talking money, mediation participants often manage to signal and read one another's actual settlement positions in ways which make settlement progress possible.
