Author: Shelby Benavidez
Contributing Attorney: Spencer Smith, attorney team lead
Negotiation is as much an art as it is a skill. Only 3-5% of personal injury cases go to trial, so an attorney’s ability to read a room, build rapport, and navigate high-stakes conversations can make the difference between a fair settlement and a frustrating standoff.
Spencer Smith, attorney team lead at Daniel Stark Injury Lawyers, has developed a reputation for his practical, people-first approach to negotiation. His insights reveal that great results don’t come from being the loudest voice in the room – they come from preparation, emotional awareness, and knowing when not to push.
Know Your Case Inside and Out
The key to a productive and successful mediation is going in prepared. Smith emphasizes that you need to know the ins and outs of your case before engaging in negotiations.
“Knowing the weak points of your case is super important. You never want to be surprised by something because the defense knows your weak points better than you do. That’s how they intimidate you into settling early.”
Preparation goes beyond reviewing evidence or calculating damages. It also includes anticipating how the opposing counsel and mediator will approach the case and understanding the process from start to finish.
“We’re not going to walk in there, demand a certain amount of money, and they just give it to us,” Smith said. “Knowing your file better than anybody else and having a plan for how the negotiation will unfold is what sets you up for success.”
But beyond the facts and figures, Smith notes, success in mediation often comes down to understanding what your client truly wants and making sure those goals guide every negotiation strategy.
Educate Clients on the Process of Mediation
Knowing your client is just as important as knowing your case. Smith said that any attorney who goes into mediation without a clear understanding of what their client wants in their pocket should reevaluate their strategy.
“Some attorneys may go in focused on what they want out of mediation,” Smith said. “But the client’s goals might be different. You’ve got to make sure you’re actually fighting to make your client happy, not what makes you feel like you’re winning.”
Smith makes a point to talk to clients about what their expectations are and lets them know what he thinks their case is worth.
“At this stage, it’s normal for clients to feel worn down and ready to give up. Part of our job is to help them see the full value of their case and give them the confidence to stand firm, so insurance companies don’t take advantage of their fatigue – they’re banking on breaking you down.”
However, at the end of the day, it is their case, and the client ultimately gets the final say.
“It’s their case, not ours. We give them advice and guide them the best we can, but you need to know what they want and respect that.”
He also prepares clients for the emotional and procedural aspects of mediation. Negotiation can be slow, offers may feel low, and the process is rarely straightforward. “If the other side makes an initial offer that seems offensive, don’t take it personally,” Smith said.
In select cases, Smith even prepares clients to speak directly to the adjuster, giving a brief, personal account of how the injury has impacted their life. “Not every client is suited for that,” he said, “but when they are, it can be very persuasive – and it puts the client’s story front and center.”
By combining thorough case preparation with a deep understanding of the client’s goals and mindset, attorneys enter mediation with both confidence and clarity, making sure they advocate effectively while protecting their client’s interests.
Know When to Push and When to Walk Away
If negotiations aren’t progressing and there’s very little movement from the defense, a skilled mediator may be able to help move numbers and bridge the gap between what the plaintiff needs and what the defense is offering, but sometimes, the gap is simply too wide to close.
Smith has seen mediations begin with offers so far apart that progress is unrealistic. “Sometimes you go to mediation, and the defense starts at $50,000 and we’re at $2 million,” he said. “There’s too much distance for us to ever reach anything. At that point, I’m just negotiating against myself.”
That’s when patience – and perspective – matter most. Instead of forcing movement that isn’t there, Smith recommends using tools like the mediator’s proposal to see if a deal can still take shape.
“The mediator can say, ‘Here’s a fair number I think the case could settle for,’” he said. “It gives both sides cover, especially adjusters who might not have the authority to go higher without something to justify it.”
Still, Smith cautions that not every case will close in mediation – and that’s okay. “Settling isn’t the goal,” he said. “Getting the right outcome is.” If the defense is refusing to move their offer, it’s time to get up and walk away.
Managing Clients When Mediation Fails
Not every mediation results in a settlement, and that can be discouraging to a client. It’s important to prepare your client ahead of time, but also reassure them afterwards that this isn’t the end.
“When we can’t reach an acceptable offer during mediation, I tell my clients not to think about it the rest of the day,” Smith said. “Go do something you enjoy. You’ve been listening to me and the mediator for hours – take a break and recharge.”
That human touch helps clients reset emotionally after a draining day. However, it’s also important to assure your client that you have a plan in place and let them know your next steps to guide them to a positive resolution.
“Going into mediation with a plan for what happens if it doesn’t close is crucial,” Smith explained. “If you put all your hope into settling that day, you and your client are going to be disappointed if it doesn’t happen.”
By outlining next steps early – whether that means continuing negotiations or moving toward trial – Smith tries to make sure his clients never feel blindsided. “It’s not the end of the world,” he said. “We’re always prepared for this going in. There’s a plan moving forward.”
This reassures the client and strengthens the attorney’s credibility. It shows composure under pressure and keeps the client’s trust intact – two qualities that can be just as valuable as winning a big settlement.
Avoid Negotiating from Weakness
Even the most well-prepared attorney can’t control everything that happens in a deposition. You can spend hours coaching your client on what to say, what not to say, and how to stay composed, but once the questioning starts, nerves and pressure can take over. Sometimes, despite everyone’s preparation, a client slips up or says something that shifts the tone of the case.
When that happens, Smith said, the key is to stay composed.
“One of the most common mistakes I see young attorneys making is negotiating from a place of panic,” Smith explained. “If your client says something they shouldn’t and your first move is to call the other attorney and say, ‘We need to get this settled,’ they’ll know exactly why you’re doing that – and they’ll offer you less.”
Instead, he advises taking a step back to reassess and build a strategy around whatever issue has surfaced. “Don’t freak out,” Smith said. “You can always adjust your plan. But if you act out of weakness, you’re going to leave money on the table.”
This same principle applies to managing client credibility. A slip in testimony or an inconsistent statement doesn’t have to derail a case – unless you let it. “Trial isn’t a popularity contest,” Smith noted. “But it is a credibility contest. If a client gets caught in a lie, even a small one, the jury’s going to think they’re lying about something bigger.”
Strong negotiators, Smith said, keep their composure and remember the bigger picture: the outcome is rarely decided in one moment, one deposition, or one mediation. What matters is how you respond when things don’t go according to plan.
Lead With Professionalism and Humanity
At its core, negotiation is a human process. Smith believes that approaching it with kindness and authenticity can make all the difference.
“Don’t be a jerk,” Smith shared jokingly. “Our job is already stressful enough. When another attorney is rude or plays hardball just to feel powerful, it doesn’t make me want to settle – it makes me want to go try the case.”
He’s found that showing respect and genuine interest in the people across the table, even when you disagree, often opens more doors than posturing ever could. “Once you show that you’re a real person and you treat the defense like they’re real people, they start to open up,” Smith explained.
That openness can turn mediation into something more valuable than a single negotiation session. “The other side is going to tell the mediator some of their counterarguments,” Smith said. “You can learn what issues they’re focusing on, what they see as weaknesses. Sometimes they’ll even say, ‘If we had this record, we could pay more.’ So, you go get that record and gain some traction.”
Even when mediation doesn’t produce a settlement, Smith views it as an opportunity to strengthen the case. “You figure out the other side’s sticking points,” he said. “Sometimes they’re valid, and you can fix them. Other times they’re ridiculous and you know it’s time to take that case to trial.”
By leading with professionalism, empathy, and composure, attorneys not only build credibility but also gain insight that can move a case forward.
Final Advice for Young Attorneys
When asked what advice he’d give to young attorneys, Smith didn’t hesitate.
“Don’t be afraid to say no,” he said. “You don’t need to settle right then and there. The goal should be getting full value for your client.”
He admits that learning to walk away takes time and confidence, but it’s a skill every litigator – and client – needs to build. “It’s a risk tolerance thing,” he explained. “The more you do it, the better you get.”
That mindset – calm, measured, and client-centered – runs through every part of Smith’s approach to mediation. The process, he believes, isn’t about outmaneuvering the other side or forcing a deal that doesn’t make sense. It’s about being prepared, staying composed, and knowing when the right outcome just isn’t on the table yet.
Because at the end of the day, good negotiation isn’t about getting to “yes” but about knowing when “not yet” serves your client better.
