There are several points I would like to highlight:
- negotiations are confidential and cannot be introduced in court, except for very limited circumstances, but not as to the ultimate issue that is the subject of the negotiations.
- negotiation is intended to narrow issues
- at the time of trial, no one is bound by the positions taken during negotiations
- a party who negotiates backwards (for example making a demand, then increasing the demand), risks losing credibility in the negotiations and also causes their attorney to lose credibility.
- Put all issues on the table as early as possible so as not to spring new issues when settlement appears near and/or give a party false hope of settlement when the parties are not really all that close.
As usual, Mark’s advice is good advice.