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Settlement Negotiation Statements

At the beginning of every mediation in our office, the mediator will pass an agreement around for everyone in attendance to sign. The agreement includes language that says that all statements made during the mediation cannot be used as evidence in the trial of the matter.

That doesn’t mean that everyone expects the mediation to fail. It only means that everyone can be open about their perceived strengths and weaknesses of the case. It’s also why statements made during settlement negotiations involving amounts are not admissible at trial. Without such limitations, settlement discussions would be discouraged and settlements would occur  less frequently. Conversely, it’s why  I cannot get up and announce to the jury that the defendant has only offered $12,000 to settle the case.

This serves as a backdrop to the ultimate downfall of Chicago gangster Al Capone. (wiki)  His own admissions in negotiation served as the evidence to convict him.


Everyone knew that Capone was both violent and a bootlegger. However, he seemed above punishment because he knew where to pay money and he was also known as a modern day Robin Hood with his donations. All that changed after the Saint Valentine’s Day Massacre of 1929.

Gang members were lined up against a wall and shot. Everyone believed that Capone had a hand in it and there was a public outcry. Prosecutors were unable to charge Capone with any of the killings but they did ultimately charge him with tax evasion.

Despite living a life of financial excess that included regularly staying in luxury hotels with his entire entourage for weeks at a time, or buying a 14-room retreat in Florida; Capone did not have a checking account and always used Western Union for cash deliveries for amounts less than $1,000. As a result, prosecutors were having a difficulty in pursuing their case against him.

Capone decided to negotiate a deal with prosecutors, rather than constantly dodging and weaving income evidence. In negotiations, he admitted his income in an attempt to arrive at a final tax payment resolution. When settlement negotiations broke down… the judge let his settlement admissions into evidence.

Capone was ultimately convicted of tax evasion and sentenced to 11 years in prison. He appealed the evidence but lost on appeal, despite his proper claim that the evidence of settlement negotiations should never have been put before the jury. He knew that his reputation kept him from having his conviction properly overturned.

Not surprising, the Judge and prosecutors were later rewarded in their careers by putting Capone in prison. One of those “the end justified the means”.

Capone never recovered from spending time in prison. He lost his position as a crime boss and ultimately died at the age of 48, while also having suffered from dementia in the latter days of his life.

And for our pic o’ day…

Dog no cat


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