The Negotiation With a Deadline and a Missing Witness
You represent a small construction company, Vermeer BV, in a dispute with a housing association over a €180,000 final payment. Mediation is scheduled for Friday. Your key witness, the site foreman, has just told you he will be abroad for six months from Saturday and cannot attend any later hearing. The association's lawyer has offered €120,000 'final, take it or leave it' before mediation, expiring Friday at noon. Your client's board wants at least €150,000 and says it will 'go to court and win'. The file contains a signed variation order supporting the full claim, but the association disputes its authenticity and the original is missing. Litigation costs are estimated at €45,000 per side, and a trial would take 14 months.
1. Advise the client on the settlement offer using a structured risk analysis, including the missing original and the witness problem.
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Frame the choice in expected-value terms. If the client wins fully, it recovers €180,000 plus costs, but the missing original weakens proof of the variation order, and authenticity is contested; a court may give the copy reduced weight or reject it. Without the foreman, the client loses its best witness on execution of the works, and a written statement is weaker than live testimony, especially where fraud is hinted. Estimate a realistic range: perhaps 50% full recovery, 30% partial around €120,000, and 20% loss, before costs. Against that, litigation costs €45,000 and takes 14 months, with collection risk. The €120,000 offer is close to a risk-adjusted outcome and avoids cost and delay. Present the numbers, not a verdict; the decision is the board's, but make clear that 'go to court and win' is not a plan.
2. Plan the mediation strategy, including how to handle the expiring offer and the witness.
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Do not accept or reject before mediation; treat the noon deadline as a tactic and say so calmly, noting that a genuine final offer rarely expires while both sides are at the table. At mediation, open by anchoring on the full €180,000 supported by the variation order, then move in stages tied to concessions: a payment schedule, a waiver of interest, or a joint statement on future works. Secure the foreman's evidence now: a detailed signed witness statement, and consider a video-link deposition or a sworn statement before he leaves, so the case survives without him. Use the witness problem internally to justify flexibility, not externally to show weakness. Set a walk-away figure with the board in advance and get written authority to settle within a range. Aim to close at or above €140,000 with costs.
3. The board rejects your advice and instructs you to refuse all offers and litigate. How do you respond professionally?
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Accept the instruction on strategy, because settlement and litigation decisions belong to the client, but protect the client and yourself. Confirm the instruction in writing, restate the risks you have explained, and record that the client has decided with full information. Take the foreman's evidence immediately so the litigation is not compromised by the refusal. Explore whether the association will extend the offer or agree to a without-prejudice reservation, so the door is not slammed shut. Do not threaten to withdraw over a lawful instruction; if the client later refuses to fund necessary steps, address that then. Keep the tone neutral and avoid any suggestion that you are punishing the client for rejecting your advice. If the client's expectation of certain victory persists, consider a short written risk memo to the board so the record is clear.