The Case Against Immediate Approval of a Settlement Offer COA vs Developer
I was at a board meeting at the apartment building where I live, and a reputable
developer (yes, they exist!) who I know owns several apartments in the building
and some nearby land besides told the story that he was owed big money and his
lawyers told him to accept a settlement offer of $50,000. "That's all the adverse
party has," they said. "Nonsense!" said the developer, mentioning several
millions of dollars worth of nearby riverfront land owned by the opposing party.
Inference: Don't believe what lawyers say without checking it out for yourself.
Trust, but verify. This principle may become very important when we receive a
settlement offer and come under heavy pressure to approve it. A good offer
should be approved, true; but we shouldn't accept an offer only because
someone has a law degree and we the people do not or because someone worked
hard on the offer and would feel bad if we don't approve it. Of course we
prefer not to elicit bad feelings. But if we must decide between getting
cheated and getting someone upset, remember that it should not be us that
get upset. We're not the ones who negotiated a bad settlement offer, if one
is offered to us, so we should not feel guilt if one shows up and we dislike it.
These tactics may be used to rush us into a bad settlement:
The lawyers recommend it.
The existing mess of an Easement Agreement was written by and approved by
lawyers. See also the lack of future income that they will ensure from us if
they give us a decisive settlement instead of one with ambiguities and loopholes
that will in turn perpetuate their continuing to be needed.
I proved that when judges and magistrates have any discretion, perfect
representation by an attorney is a theoretical impossibility. See the section
on avoiding an administrative attorney in my published article at
http://www.jpands.org/vol17no2/harshman.pdf
“We have already spent big money on legal work; we shouldn’t waste it
by rejecting a settlement.”
All that we have acquired in exchange for spending money on legal work that
generates a settlement offer is the right to accept that offer with no further
expense. We can abandon the expense as a total loss if we wish. Furthermore,
although a settlement offer may not be up to our standards and be rejected,
it is almost sure to contain worthy concessions and stipulations that can be
retained while the offer is remanded back to the negotiating team for further
work. The prior expense won’t be a total loss unless the prior negotiations
have been very poorly handled, which is unlikely.
“The board members have provided countless hours of high-stress work
without compensation. They would feel hurt and betrayed if the offer is not
accepted.”
The board members work for us. They are our servants and not our masters.
If it’s a choice between the fiscal health of the facility and the self-esteem
of the board members, they lose. No, I don’t like the idea of offending or
disappointing anyone. But that component of respect works both ways. The
board should not offend or disappoint us with a bad settlement and rush us
into approving it.
“The developer may refuse to consider any modifications to an offer
that we receive.”
Improbable, given that the developer will gain from rational negotiations and
not just we owners. Refusing any revisions would leave the developer in a
legal quandary too, not just us. Of course he may reject terms that we offer
that would be disadvantageous to him. But further work on the terms that
would bring him, not just us, further advantages? Unlikely.
“It’s the best we could do under the circumstances, especially
with a capricious developer.”
Not credible because the various components of a revised Easement Agreement
or successor arrangement (perhaps a partial buyout) that we the people might
have suggested have had no known pathway from suggestion to negotiation
table. It’s possible, or even probable, that someone if given a chance could
offer a concession to the developer in return for a stipulation from him that
no negotiator so far has considered and that would be beneficial to both
negotiating parties. Do not assume that board members and lawyers combined
know everything and can think of every possibility.
“Already you are saying reject the settlement before having even
seen it? That’s hostile!”
No I’m not. I’m saying read it carefully and accept it if and only if it
is good. If I post this commentary after the settlement is offered to us,
then in the frenzy of relief that a settlement is offered some of us will
vote with an emotional outburst and not with cool rational analysis, thereby
perhaps making a very expensive mistake. I am trying to prevent such a
mistake from happening.
Sure, let’s root for a good settlement offer. I know I do. But I am far
from optimistic. Drive where you please, but wear a seat belt just in case.
See some unsavory people in the lobby, and call for stronger security. We
cannot afford to assume/pretend that human nature is all good. We have to
take it as we find it, which means that some precautions are necessary.
Note that those who are bothered by these precautions closely correlate
with those who would exploit us if the precautions did not exist. Do not
pay attention to any challenge until you make sure that whoever challenges
us has no material interest in doing so.
Finally, beware responses of disagreement that include superfluous
abstract concepts, obfuscations, and useless verbiage that are intended
to wear us down and contrive for us to concede merely due to intellectual
fatigue. Some politicians use those tactics to wear down voters, who in
turn often fall for them. I won’t. Be warned; don’t fall for them either.
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