what do you mean settlement offers are confidential?

the purpose of settlement discussions can be confusing. in some cases, making an offer to settle can be important to secure your best chance of cost recovery if the dispute ultimately has to be determined by a third party decision maker. at mediation, settlement offers disappear if they are not accepted. i like to say they evaporate.

a purpose of a formal offer to settle - often made in advance of going before an arbitrator or judge - is to demonstrate that you made a reasonable effort to address the matter. the decision maker will often take this into account when awarding costs. if, for example, your offer was rejected by the other party + is close to the outcome of the case, you will likely be better positioned for cost recovery.

in mediation, settlement offers are not made for purposes beyond settlement. the idea is to establish an environment where ideas can flow freely + a fullsome discussion can take place to see if the conflict can be settled on a basis that everyone accepts. to allow for a full exploration, mediation takes place on a confidential basis. nothing that is said at mediation should leave the process, short of a written, binding settlement agreement. it has been said that mediation "stays in vegas".

making a settlement offer in mediation will not help your chances of recovering costs if the conflict moves to an adversarial process down the road. participating in mediation might.

the purpose of settlement offers in mediation is to see if the time, cost + risk that comes with an adversarial process can be avoided.

 

 

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