Negotiating With The Government
a. Will the government negotiate with me?
The government will sometimes negotiate with you, as opposed to your attorney, but typically only up to a certain limit. In most cases, it is only after the government knows you are represented by an experienced attorney willing and able to take the case to trial that it will negotiate in the range of the just compensation to which the property owner is entitled.
b. Will my statements in negotiations be used against me if we go to court?
Possibly. Though there are certain protections against statements in negotiations being used against parties in court proceedings, you must be very careful about the positions you stake out in negotiations and the statements made in support of those positions. In addition to the possibility that such statements may be used against you later in court proceedings, it is often difficult or impossible to “un-ring the bell” in regard to stated positions. This is true whether or not you understood the full implications of what you stated at the time.
c. How long will negotiations take?
The length of the negotiation process depends on many factors, including the size and complexity of the taking, the magnitude of the difference between the government’s and your opinion of just compensation, and project scheduling. Each case is unique, and there is no standard length. Negotiations can take a matter of weeks or go on for months, ultimately with or without success, as trial preparation goes on.
d. What is mediation?
Mediation is a process designed to facilitate settlement of disputes. Mediation involves a neutral third party—oftentimes a retired judge or experienced attorney—called the mediator. The mediator meets with the parties, listens to the parties’ respective positions, explains to each party privately his or her perception of the strengths and weaknesses of the parties’ respective positions and encourages the parties to settle the case, rather than proceed to trial. Mediation is a voluntary process in the sense that a party cannot be forced to settle a case. In certain circumstances, the parties may be forced to attend a mediation or judicial settlement conference by order of the court.
e. When does mediation take place?
It varies depending on the circumstances of each case. Mediation may take place early in the life of the dispute between government and property owner, on the eve of trial or anywhere in between. As noted above, courts may also order the parties to attend a mediation in the form of a judicial settlement conference before proceeding to trial.